DEFINITIONS

1. The following words and expressions shall have the following meanings:

“Aggregator Member”	a Member of BBFC.online which is an online retailer or electronic distribution channel provider of Digital Works;
“BBFC”	the British Board of Film Classification;
“BBFC. online”	the service provided by BBFC in respect of Online Classifications;
“Catalogue Works”	video works that have already been classified under the VRA;
“Consumer Advice”	BBFC’s advice to consumers on the content of a work (not supplied for trailers or adverts or other value added material);
“Content Provider Member”	a Member of BBFC.online which is a provider or rights holder of Digital Works;
“Customer”	the company, person or distributor dealing with the BBFC;
“Digital Works”	audio visual works to be distributed and displayed by digital delivery through download, streaming or similar, and which are not subject to the VRA;
“ECI” (Extended Classification Information)	the extended classification information on the Site concerning a digital work;
“Electronic Black Card” (EBC)	The electronic audio visual file supplied by the BBFC to members for placement at the beginning of digital works;
“Extranet”	that part of the BBFC website where Members may access the data relating to Digital Works to enable them to create or download an EBC and online point of sale information link in respect of Digital Works;
“Licenced Materials”	as defined in the Online Licence;
“Member(s)”	a Customer who has become a member of BBFC.online;
“New Works”	video works that have not yet been classified under the VRA;
“Online Classification”	the classification awarded to  a Digital Work for distribution by digital delivery through download, streaming or similar and includes a VOD only classification;
“Online Licence”	the Licence set out in Schedule 2;
“VRA”	the Video Recordings Act 1984
“Video Classification”	a BBFC classification to a Video Work issued under the VRA
“Video Works”	the same meaning as ‘Video Works’ under the Video Recordings Act 1984;
“VOD Only Classification”	an online classification where no video classification is required;
“Work”	a Video Work and/or a Digital Work as the context requires.

Section A:  General

This section applies to all Customers, whether or not they are Members of BBFC.online.

2.       The Customer acknowledges and agrees by submitting a Video Work or Digital Work with the BBFC that:

a.      it will adhere to these Terms and Conditions, the Online Licence (if the Customer is a Member) and all such practice guidelines (which shall include all practice and instructions set out on the BBFC website) that may be issued by the BBFC from time to time. All such practice guidelines shall be deemed to be incorporated into and form part of these Terms and Conditions, and shall be reasonably issued to improve, augment, explain, supplement or adapt the BBFC’s operation (such practice guidelines will normally be issued with thirty days’ notice).

b.      this is a business transaction to which the normal rules of business apply;

c.      the clauses contained in these Conditions which exclude, limit or modify the liability of the BBFC, its Director, officers and servants are reasonable;

d.      the value of the Video Work or Digital Work and other items which may be entrusted to the BBFC by the Customer and the degree of work for which the Customer obtains the services of the BBFC will vary considerably and may be disproportionate to the BBFC’s fees which cannot, for this reason, be varied;

e.      it is a condition of the BBFC’s agreement to provide services for the Customer that there shall be prepayment according to the BBFC’s published tariff of fees;

f.        fees are non-refundable, in whole or in part, for any work carried out by the BBFC and the Customer shall remain liable for the full amount. The Customer shall pay all value added tax at the rate prescribed by law.

3.       The Customer similarly further acknowledges, undertakes and agrees that:

a.      any Video Work or Digital Work entrusted to the BBFC will not be the master or sole copy of the work and will be retained by the BBFC in all cases;

b.      the Video Work or Digital Work or other recording submitted to the BBFC for examination and classification will in normal circumstances be continuous and will not include any gaps;

c.      any time-coding superimposed onto the Video Work or Digital Work will commence at the first frame of sound or visual information, whichever is first, and will end with the last frame of sound or visual information, whichever is last, and such time-coding will not extend through sections of the tape which are not intended to be reproduced on the release version when this is classified;

d.      no Video Work or Digital Work will be accepted unless accompanied or preceded by a completed submission form (either hard copy or electronic);

e.      when a Video Work or Digital Work has been pre-cut by the submitting company, the Customer must submit an uncut copy of the complete Video Work or Digital Work in addition to the version submitted for classification. These must be clearly labelled.

f.        there will, in normal circumstances, be a 72-hour processing period between the viewing of a Video Work or Digital Work or other item and the release of the BBFC’s decision.

i.      The BBFC will endeavour to reduce this period in genuine emergencies, but there shall be no obligation on the BBFC to do so;

ii.      There may be occasions where the BBFC in its absolute discretion deems that the nature of the Video Work or Digital  Work entails a longer processing period, and no action, claim or demand shall lie against the BBFC in respect thereof;

iii.      The decision as to the BBFC’s proposed classification and any conditions on which that classification will be issued, or alternatively its decision not to classify, will be conveyed to the Customer by the BBFC as soon as is practicable and will not unreasonably be delayed.

iv.      The BBFC is not bound to reach any particular decision as to classification and may at its discretion decide that the Work is not suitable for a Video or Digital Classification to be issued in respect of it.

g.      the BBFC shall notify the Customer whether or not it considers a Video Work is suitable for classification and, if it considers a Work is suitable, an Interim Clearance Form will be sent to the Customer;

h.      receipt of an Interim Clearance Form allows the Customer to appeal against the decision of the BBFC (see Video Appeals Committee Provisions 2011). If the Customer does not wish to appeal, the Interim Clearance Form must be returned to the BBFC countersigned by an authorised representative of the Customer, or should otherwise indicate its acceptance of the Interim Clearance Form in a manner acceptable to the BBFC.  (In the case of a Video Work, the grant of the accompanying Online Classification (unless the Customer has opted not to receive an Online Classification) shall take place after the Video Work has received a Video Classification, and accordingly any request for reconsideration or appeal in respect of a classification must take place pursuant to the VRA procedure. There is no separate right to appeal the grant of an Online Classification. Appeals against VOD Only Classifications shall also be carried out pursuant to the Video Appeals Committee Provisions 1985.  The relevant provisions relating to requests for reconsideration and appeals under the VRA are set out on the BBFC’s website);

i.        upon receipt of the countersigned Interim Clearance Form (or other acceptable indication that the Interim Clearance Form is accepted by the Customer) the BBFC shall, provided that it remains satisfied that the Video Work should be so classified, issue a Video Classification Certificate of the category indicated in the Interim Clearance Form; in the event that the BBFC is not so satisfied it shall notify the Customer accordingly and proceed as if no Interim Clearance Form had been issued.  If the Customer is a Member of BBFC.online, BBFC shall issue an Online Classification following the issue of the Video Classification Certificate (unless the Customer has opted not to receive an Online Classification).  On issue of a Video Classification Certificate the BBFC shall also make available the relevant Consumer Advice relating to the Work;

j.         upon receipt of the countersigned Interim Clearance Form (or other acceptable indication that the Interim Clearance Form is accepted by the Customer), the BBFC will issue a provisional Online Classification (OFC number) on the BBFC Extranet.  Provisional OFCs can be used for use in marketing, ingest and pre-sales purposes only and must be clearly marked as provisional.  Members are still required to complete the VRA submission procedure, and provisional OFCs will be withdrawn after 3 months if the VRA procedure is not completed or time extension is not granted by BBFC.

k.      for the avoidance of doubt, Online Classifications are only available to Members of BBFC.online.

l.         should the BBFC require cuts to be made, BBFC will retain in its archive the version of the Video Work or Digital Work originally submitted for classification. The Customer will resubmit an edited further copy of the Video Work or Digital Work (retaining a duplicate) for examination. If the cut version is awarded a classification the Customer will be informed. The version as approved will also be retained in the BBFC’s archive.

m.    where a Customer makes requests of BBFC by telephone or email (rather than through the BBFC website) BBFC reserves the right to charge additional administration fees to cover the costs of this.

n.      under the terms of the VRA it is necessary for the BBFC to retain in its archive a copy of the classified version of Video Works subject to the VRA. This copy must be precisely as supplied to the public and may not include any gaps.  The BBFC will not retain in its archive copies of Digital Works with VOD Only Classifications.  If a Customer requires Digital Works with a VOD Only Classification to be archived by the BBFC, and the BBFC agrees to do so, the BBFC reserves the right to charge a fee for this service.

o.      a Video Classification or Online Classification certificate issued in respect of a Work which contains images of such short duration that they are unlikely to register when viewing at normal speed may be withdrawn if the images throw into question the category awarded and were not drawn to the attention of the BBFC at time of submission.

p.      any liability of the BBFC for any loss of, or damage to, the Video Work or Digital Work the property of a Customer whilst in the BBFC’s keeping for purposes of classification shall be limited to the replacement value of the recording medium, together with the cost of transferring to it from a master copy the necessary audio-visual information;

q.      the BBFC cannot be held responsible for any loss or damage incurred by the Customer or any third person as a consequence of any professional advice or any recommendations provided by the BBFC at the request of the Customer;

r.        the Customer is in a better position than the BBFC to insure the Customer’s work and operations against loss, damage or delay arising out of any goods being left in the keeping of the BBFC or their being transported to or from the BBFC’s premises, and the BBFC shall not therefore be under any obligation to take out such insurance;

s.      the Customer shall be responsible for any loss or damage caused to the BBFC by reason of any virus or similar being uploaded by the Customer to the BBFC website;

t.        any Video Work or Digital Work submitted to the BBFC for classification together with all associated material may be used for educational, training, research or archive purposes.

Section B: Online Classification

This section applies to Customers who are Members of BBFC.online.  Only Members of BBFC.online may apply for Online Classifications. 

4.       Customers may apply for Online Classifications for Video Works which have previously been classified (‘Catalogue Works’) or for Video Works or Digital Works which have not previously been classified (‘New Works’). New Works will be classified under current BBFC published guidelines for VRA submissions, available at www.bbfc.co.uk. Further procedural rules are set out in Schedule 1.

New Works

a.      Whenever a Video Classification is applied for in respect of a Video Work the Customer will also be issued with an Online Classification in respect of that Work.

b.      If the Customer does not require an Online Classification, the box on the Submission Form marked “I Do Not Require An Online Classification” should be ticked. The New Work will then be classified at the Video Work Only price (see Schedule 6).

c.      An Online Classification will not be granted unless and until the Video Work has successfully received a Video Classification, and will in the first instance be granted in the name of the applicant for the Video Classification.

d.      See paragraph 3(j) above for details of the issue of provisional OFCs.

e.      An Online Classification will not be granted unless the applicant is a Member of BBFC.online.

f.        Upon the grant of an Online Classification, the BBFC will make available to the applicant an Electronic Black Card, an Online Classification number (with the prefix ‘OFC’) in respect of the Work and the Consumer Advice relating to the Work.

Catalogue Works

g.      The Customer may apply for an Online Classification in respect of the Catalogue Work.
VOD Only Classification

VOD Only Classification

h.      Members may apply for a VOD Only Classification where a Video Classification is not required (eg the Work will only be distributed by digital delivery).

i.        Members should apply for a VOD Only Classification online through the BBFC website (via the Extranet).

j.         VOD Only Works will be classified under current BBFC published guidelines for VRA submissions available at www.bbfc.co.uk.

k.      Upon acceptance by a Member of the BBFC’s VOD Only Online Classification BBFC will issue a provisional Online Classification (OFC number) on the BBFC Extranet.  Provisional OFCs can be used for use in marketing, ingest and pre-sales purposes only and must be clearly marked as provisional.  Members are still required to complete the VOD Only submission procedure, and provisional OFCs will be withdrawn after 3 months if the VOD Only procedure is not completed or a time extension is not granted by BBFC.

l.         Upon the grant of a VOD Only Classification, the BBFC will make available to the applicant an Electronic Black Card, an Online Classification (VOD Only) number (with the prefix “OFC”) in respect of the Work and the Consumer Advice relating to the work.
Online Classification where Video Classification held by third party

m.    Subject to the rules in this section, Members may be granted an Online Classification for a Catalogue Work to which they only have digital distribution rights.

n.      If the Member has digital distribution rights to a Catalogue Work for which another company has a Video Classification, the Member can request an Online Classification in respect of the digital distribution rights direct from the BBFC using the procedure set out in Schedule 1.

o.      The Video Classification will remain with the entity that obtained it but the Online Classification and associated Online Classification number can be used by the Member.

p.      Content Provider Members and Aggregator Members may only apply for an Online Classification in this category where they have digital distribution rights in the Work concerned.

All Online Classifications

q.      Where a Customer wishes to distribute electronically a work in a different aspect ratio to that of the Work which obtained the original Online Classification then provided that the content is identical to the original work in all other respects, and provided that such aspect ratio change would not lead to a variation in classification, and provided that the ratio change results in no increase in visible picture, the aspect ratio change will not cause the work to be treated as a new work for the purposes of the Online Classification.

Section C:  Terms applying to Members of BBFC.online for use of Online Classifications

5.       Membership of BBFC.online for Content Providers entitles the Content Provider to apply for Online Classifications and use those Online Classifications registered in their name and other Licensed Materials in accordance with the Online Licence.  Membership of BBFC.online for Aggregators entitles Aggregators to apply for Online Classifications (where a Content Provider has not done so) and to use all current Online Classifications in respect of Digital Works for which the Aggregator Member has digital distribution rights.

6.       All Members agree to adhere to and be bound by the terms of the Online Licence set out in Schedule 2.

7.       Customers may access electronic data required to create and display the Licensed Materials referred to in the Online Licence through the BBFC extranet but only in respect of Video Works to which an Online Classification has been granted and (i) in the case of a Content Provider Member, which are registered in the name of that Content Provider Member and (ii) in the case of an Aggregator Member, in relation to which that Aggregator Member has digital delivery rights.

8.       Transfer and Assignment

8.1.       A Member who has been granted an Online Classification or rights to use an Online Classification shall not be entitled to transfer, assign, sub-licence, subcontract or dispose of any interest, right or obligation in respect of:

(i)     an Online Classification;

(ii)    its rights under these Terms and Conditions and/or the Online Licence (save as expressly set out therein).

8.2        Membership of BBFC.online is not assignable and no rights of membership are transferred by virtue of a change in distribution rights of any classified work.

8.3        Where a Member has joined BBFC.online and signed an Online Licence that Member may, subject to the prior written approval (such approval not to be unreasonably withheld) of the BBFC to the identity of the Group Company concerned:

(a)  in the case of Content Provider Members only, register Online Classifications in the name of any of its Group Companies without such registration constituting a “change of distributor” under the Terms and Conditions; and

(b)  permit its Group Companies to use rights pursuant to the Online Licence;

provided that in either case the Member procures due compliance by such Group Company with these Terms and Conditions, the Online Licence and any practice guidelines such that references in these Terms and Conditions, Online Licence and practice guidelines to “the Member” or “the Licensee” shall be deemed to include reference to such Group Company.

For this purpose, “Group Company” shall mean any company which is the Member’s holding company or subsidiary, or a subsidiary of that holding company, and for this purpose “holding company” and “subsidiary” shall have the meaning as set out in section 1159 Companies Act 2006.

Where any Group Company ceases to be a Group Company as defined above such Group Company shall cease to be entitled to the rights afforded above and the Member shall procure that such Group Company ceases to so exercise them.

Publicity

9.       Members will have permission to use certain promotional materials for advertising and marketing purposes pursuant to and as set out in practice guidelines issued by BBFC from time to time.

10.   All marketing content (including pack shots) must meet the presentation and information standards set out in practice guidelines issued by BBFC from time to time.

11.   Use by the Customer of any promotional material and marketing content pursuant to clause 9 and 10 shall include a clear acknowledgement of the copyright and other intellectual property rights of the BBFC.

Classification Information Attached to Content

12.   The Customer must ensure that, in respect of each Digital Work granted an Online Classification which is to be distributed electronically, if the Customer wishes to make reference to the Online Classification and/or BBFC, then the relevant Online Classification must be attached or otherwise displayed.

13.   The Customer must ensure that the content of the digitally-distributed work supplied by that Customer to the public is identical to that Digital Work awarded the Online Classification and, if that aggregator wishes to make reference to the Online Classification or the BBFC, must contractually require the same of any aggregator (Member or non-Member) to whom a sub-licence is granted under the terms of the Online Licence and these Terms and Conditions.

Point of Sale Information

14.   Aggregator Members may use the BBFC classification materials and point of sale information in the ways set out in these Terms and Conditions, BBFC practice guidelines and the Online Licence.

15.   Aggregator Members must display on the distribution channel the BBFC.online logo and the text set out in Schedule 3.

16.   Trailers and adverts which have been granted an Online Classification and which are presented as such should display the appropriate BBFC classification symbol in a manner which makes it clear that the trailer or advert has been classified in that category.

Distribution other than through Aggregator Member

17.   A Content Provider licensing a Digital Work with an Online Classification for distribution by an Aggregator who is not an Aggregator Member may attach the Electronic Black Card to the audiovisual content but must ensure that the audiovisual content is not supplied or offered for supply using Licensed Materials (other than the Electronic Black Card), or any other information, attached or displayed in such a way as to indicate or suggest that the audiovisual content is being supplied or offered for supply in accordance with BBFC.online.
 

18.   The lack of an Aggregator shall not prevent the licensing Content Provider Member from being registered under BBFC.online, but the Content Provider Member must comply with the restrictions in these Terms and Conditions and the Online Licence.

Loss of Distribution Rights

19.   An Aggregator Member’s rights to use an Online Classification and the other rights afforded to it pursuant to these Terms and Conditions and the Online Licence in respect of a Digital Work shall cease if the Aggregator Member loses the electronic distribution rights to that Digital Work.

Compliance

20.   Compliance checks may be executed at BBFC cost to ensure compliance with these Terms and Conditions and the Online Licence, including on receipt of complaints from Members of the public. (See Clause 32 ‘Complaints’).

21.   Issues examined at compliance shall include (without limitation) confirmation that:

a.      Digital Works offered through online distribution channels are identical to those originally classified by the BBFC;

b.      the Licensed Materials (as defined in the Online Licence) (including but not limited to all BBFC symbols, text and links) are displayed in accordance with these Terms and Conditions, practice guidelines and the terms of the Online Licence.

22.   The Customer shall supply to the BBFC free of charge such hardware, passwords, codes, software and access rights as will allow the BBFC to audit fully any Member’s compliance without notice.  If the BBFC is unable to so access any Work with a VOD Only Classification for compliance purposes such VOD Only Classification may be deemed invalid at the BBFC’s discretion (such discretion to be exercised reasonably) and accordingly the Customer shall cease to have rights to use such VOD Only Classification in accordance with the Online Licence.

Compliance Failures

23.   Any failure to comply fully with all aspects of these Terms and Conditions, the Online Licence and practice guidelines is serious and may entitle the BBFC to terminate a Member’s membership of BBFC.  Notwithstanding this the BBFC will normally view compliance failures as falling into one of three categories as follows:

• Simple mistakes
• Fundamental Issues
• Gross abuse of BBFC.online

Examples of each type of issue are set out in Schedule 4.

24.   The standard procedures (which can be varied at the BBFC’s reasonable discretion) for how each of these types of failure are dealt with are set out below.

25.   BBFC will consult as necessary the British Computer Society and refer such matters to it as the BBFC considers appropriate for determination and advice. The administration costs of such adjudication shall be met by BBFC.online.

Mistakes

26.   Simple mistakes

Remedy: The BBFC will issue a correction notice by email as soon as a simple mistake becomes apparent. Members should normally take action to correct the mistake within five working days. Where a correction is disputed, notification and reasons must be supplied to the BBFC within five working days of issue of the correction notice.
NB: Multiple unresolved simple mistakes may be counted as ‘Fundamental Issues’.

27.   Fundamental Issues

Remedy: The BBFC will undertake more thorough compliance, auditing either a larger percentage of the Content Provider Member’s classified works or a greater proportion of the Aggregator Member’s distribution channel. Charges reflecting administration and labour will be made for this work.
In addition the BBFC shall be entitled to suspend any hyperlinks to the BBFC website without notice.
NB: The Member will also be put on notice that recurring or unremedied fundamental breaches may lead to the Member being considered in gross abuse of BBFC.online.  Such notice may be disputed by the Member within five days of issue, and provide any submissions supporting their case for reconsideration by the BBFC within 15 working days. The result of such reconsideration shall be notified to the Member within a further ten working days.

28.   Gross Abuse of BBFC.online

Sanction: The Member will be served with a notice of termination of membership of BBFC.online and cancellation of its Online Licence. It will state the full reasons for such notice, and (where appropriate) set out the events that have led to the termination. The Member may dispute such notice by within five days of issue, and provide any submissions supporting their case for reconsideration by the BBFC within 15 working days. The result of such reconsideration shall be notified to the Member within a further ten working days.
In addition the BBFC shall be entitled to suspend any hyperlinks to the BBFC website without notice.

29.  Reporting Back on Compliance Failures
The BBFC may issue a full compliance report to the Member, covering any or all of those issues covered in Schedule 4.

Complaints

30.   The BBFC will make available via its website details of BBFC.online for perusal by members of the public. This will include a complaints procedure for use by members of the public.

31.   As set out in clause 15, Aggregator Members must display the text set out in Schedule 3, which identifies the appropriate complaints procedure a member of the public should follow.

32.   Classification Complaints.

Where a complaint is received by a Member from a member of the public regarding the BBFC’s classification decision for any classified work, the Member must refer the Complainant to the BBFC who shall deal with it in accordance with its normal procedures for VRA classification complaints.

33.   Application for membership of BBFC.online shall be open to all:

33.1 Complaints received directly by Members may be dealt with them direct in the first instance, if they involve any resolvable ‘Simple Issue’.

33.2  A record should be kept of all complaints and the outcomes. Should the complaint not be resolved to the complainant’s satisfaction, the Member must refer the complainant to the BBFC within five working days.

33.3  Subject to data protection legislation, the Member shall, upon request of the BBFC, make available a log of all complaints received regarding the Scheme.

34.   Escalation

34.1    Where a complaint:

(a)    cannot be resolved between the Member and the complainant; or
(b)    possibly amounts to a ‘fundamental issue’; or
(c)    possibly amounts to a serious breach of the Terms and Conditions and/or the Online Licence; the complainant must be referred to the BBFC within five working days,  acknowledged with the text set out in Schedule 5 (as appropriate)

34.2    The BBFC will deal with any such complaint as if it were a potential compliance failure and consider the complaint in accordance with the provisions of clauses 23 to 29.

 

35. Preservation of items / artefacts

Where a complaint is made, all necessary steps must be taken to preserve all items that are the subject of the complaint, regardless of whether a decision is taken by the Member to remove immediately from its website(s) the items subject to complaint.

36. Identification

Aggregator Members shall also make the following information easily, directly and permanently accessible to the recipients of the service at least the following information:

36.1    the name of the Aggregator Member;

36.2    the geographic address at which the Aggregator Member is established;

36.3    the details of the Aggregator Member, including its email address or website, which allow for it to be rapidly and directly contacted

Admission and Termination of Membership

Eligibility

37.    Application for membership of BBFC.online shall be open to all:

(a) producers or rights holders of audiovisual works to be distributed and displayed by electronic means and which are not subject to the Video Recordings Act 1984 (“VRA”) (“Content Providers”); and

(b) online retailers or electronic distribution channel providers of audiovisual works which are to be digitally distributed and displayed by electronic means and which are not subject to the Video Recordings Act 1984 (“Aggregators”).

38.   Membership of BBFC.online shall be for a minimum period of twelve months renewable annually for subsequent 12 month periods. Membership fees and terms of payment are set out in clauses 63 to 66 and Schedule 6. The membership year shall commence annually on 1^st June, and the Membership fee shall be payable pro-rata for any part thereof.

39.   Admission to Membership of BBFC.online shall be at the sole discretion of BBFC.

40.   The BBFC reserves the rights to terminate or suspend membership if compliance standards are not maintained by the Member (see clauses 20-29 (Compliance and Compliance Failures) and clause 43 (Termination)).

41.   Any Member may terminate its membership of BBFC.online by giving thirty days written notice to the BBFC but no refund of the annual membership fee shall be payable.

42.   The BBFC may terminate any Member’s membership of BBFC.online by giving the Member 3 months’ notice at any time.

43.   Notwithstanding the provisions of clauses 23-29 (Compliance Failures), the BBFC may terminate a Member’s membership of BBFC.online immediately at any time by written notice to that Member if:

43.1      the Member commits any material or persistent breach of its obligations under these Terms and Conditions which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied;

43.2      the Member’s Online Licence is terminated;

43.3      that Member:

(a)              ceases to trade; or

(b)              becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to it; or

(c)              compulsorily or voluntarily enters into liquidation (except for the purposes of a bona fide reconstruction or amalgamation and with the prior written approval of the BBFC, (not to be unreasonably withheld);

(d)              has an administrator, receiver or manager appointed over the whole, or substantial part of its undertaking or assets;

(e)              any analogous event occurs in any other jurisdiction;

(f)                is subject to a change of its control which, in the opinion of the BBFC, materially affects the ability of that party to carry out its obligations under these Terms and Conditions; or

(g)              ceases or threatens to cease to carry on its business;

43.4      in the opinion of the BBFC, that Member’s use of the BBFC’s materials licensed to it under the Online Licence bring the BBFC into disrepute; or

43.5      for the purposes of this clause ‘control’ shall mean the ability to direct the affairs of that Member, whether by virtue of the ownership of shares, contract or otherwise

44.   The BBFC shall be entitled to terminate BBFC.online and each Member’s membership of it at any time upon giving 3 months’ written notice to the Members.

45.   Upon the expiry of the notice of termination of membership the Member will immediately:

45.1      cease to have the right to use any Online Classification granted to it or any other rights afforded to it pursuant to these Terms and Conditions and the Online Licence;

45.2      cease to refer to BBFC.online or its membership of it on any website or in any promotional or other materials;

45.3      comply with the terms of the Online Licence applicable on its termination.

46.   On termination of a Member’s membership of BBFC.online all provisions of these Terms and Conditions shall cease to have effect in respect of that Member, except that any provision which can be reasonably inferred as continuing, or is expressly stated to continue, shall continue in full force and effect.

Section D: General Terms applicable to all Customers (Members and Non-Members)

47.   The BBFC shall be entitled to make public the names of any and all Customers.

48.   No statement, note or record of proceedings of meetings, seminars or training sessions may be passed to any third party without permission of the BBFC.

49.   Where a Video Work or Digital Work is being marketed (but not sold) in advance of a release date, it is acceptable for a ‘TBC’ caption to be used. This must be replaced with the official classification symbol before the work is released and sold.

Liability

50.   The BBFC shall have no liability to a Customer in respect of the grant or failure to grant any Online Classification, provided such grant or failure to grant is made according to the BBFC guidelines, these Terms and Conditions and practice guidelines, and applicable law.

51.   The BBFC shall have no liability for any loss or damage incurred by any Customer or third party as a consequence of any advice or any recommendations provided by the BBFC at the request of a Customer.

52.   All warranties, terms and conditions, whether implied or arising under statute or common law, custom, trade usage or course of dealing between the parties or otherwise, shall be excluded to the fullest extent permitted by law.

53.   The BBFC’s liability to a Customer shall be limited to exclude altogether liability, howsoever arising, for damage to software, damage to or loss of data, loss of profits or contracts, loss of business or of anticipated savings, loss of goodwill, loss of reputation and for any other type of indirect, incidental or consequential loss or damage.

54.   The BBFC’s maximum aggregate liability to a Customer and a Customer’s maximum aggregate liability to the BBFC in each case in respect of claims based on events in any calendar year arising out of or in connection with BBFC.online (including the Online Licence) whether in contract or tort (including negligence or otherwise) shall not exceed £100,000.

55.   Nothing in these Terms and Conditions shall operate to exclude or limit the BBFC’s or a Customer’s liability for:

a.   death or personal injury caused by its negligence; or

b.   fraud; or

c.   any other liability which cannot be excluded or limited under applicable law.

56.   Each Customer shall at all times keep the BBFC, its officers and servants effectively indemnified against all actions, proceedings, costs, charges, claims, expenses and demands whatsoever which may be made or brought against the BBFC, its officers or servants by any third party in respect of any alleged injury, loss, damage or expense arising out of or in connection with a breach of these Terms and Conditions, the Online Licence or any practice guidelines by that Member.

57.   Where at the request of the Customers, the BBFC supplies the services of an officer, examiner, technician or other person to the Customer, such officer or other person shall, for the purposes of any liabilities to third parties or loss or damage sustained by the Customer or by the BBFC, be deemed to be the servant of the Customer, and the BBFC shall not be liable for loss or damage of any kind, however caused.

Use of the BBFC’s Intellectual Property

58.   Where a Video Classification certificate is issued in respect of a Work, the use of such certificate, BBFC symbols, BBFC consumer advice and BBFC extended classification information is granted solely for use in the identification, labelling and distribution of the classified work in the form of a Video Work.  Customers should be aware that the BBFC symbols are Registered Community Design Marks in the European Union.

59.   Customers must not use such certificates, BBFC symbols, information and labelling to promote, identify or otherwise represent that any work has been granted BBFC certification for electronic distribution by streaming, downloading or similar, unless such ‘Online Classification’ and licence for the use thereof has been granted by the BBFC to the Customer under the terms of BBFC.online and the Customer remains a Member in good standing of BBFC.online.

Section E:  Fees

This Section applies to all Customers, or to Members only where indicated.

60.   The fees payable for classification of Video Works and Digital Works are set out on the BBFC website.  The BBFC reserves the right to vary its classification fees at any time on 30 days’ notice, such notification to be given on BBFC’s website.

61.   Notwithstanding clause 60 above, a further classification fee will be payable:

a.   for the whole of the Video Work or Digital Work in the event of a major remake or alteration after the BBFC’s classification decision has been notified to the Customer, or

b.   for the part of the Video Work or Digital Work where a minor amendment has been made after the BBFC’s classification decision has been notified to the Customer, or

c.   where changes have been made to a Work following a cuts request that significantly differ from those required by the BBFC.

62.   All classification fees must be paid in advance.  BBFC operates a prepayment system for all works submitted.  Customers may operate on a pro forma invoice basis, or send money on account, which is run down as works are received and topped up as necessary.

Membership Fees

63.   The fees for membership of BBFC.online are set out on the BBFC website.  The BBFC reserves the right to vary its membership fees at any time by giving Members at least 30 days’ notice, such notification to be given on the BBFC website.

64.   Membership fees are payable annually in advance.

65.   If any fees (classification, membership or otherwise) are not paid on the due date for payment interest shall be payable on the outstanding amount from the due date until the date of actual payment (whether before or after any judgement) at the rate of 3% above the base rate of Barclays Bank plc from time to time, such simple interest to accrue on a day to day basis.

66.   All fees are exclusive of VAT and other applicable sales taxes which, if applicable, shall be payable in addition.

Section F:  General Terms applicable to all Customers

Time not of the Essence

67.   Time is not of the essence in any contract with the Customer, and the BBFC shall not be liable for any delays in the supply of materials and services by it or any losses whatsoever due to any such delays, howsoever caused.

Force Majeure

68.1   The definition in this clause applies in these Terms and Conditions.

“Force Majeure Event”

any event arising that is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).

68.2 Where the BBFC or a Customer becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay to perform its obligations under these Terms and Conditions it shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay shall continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.

68.3    The parties accept no responsibility for breaches of these Terms and Conditions occurring as a result of a Force Majeure Event.

Confidentiality

69.1    The definition in this clause applies in these Terms and Conditions.

“Confidential Information”

all information, whether technical or commercial (including all specifications, drawings and designs disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:  (a)              identified at the time of disclosure as confidential; or (b)              ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

69.2    Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

69.3    Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

69.4    The obligations set out in this clause shall not apply to Confidential Information which the receiving party can demonstrate:

(a)      is or has become publicly known other than through breach of this clause; or

(b)      was in possession of the receiving party prior to disclosure by the other party; or

(c)      was received by the receiving party from an independent third party who has full right of disclosure; or

(d)      was independently developed by the receiving party; or

(e)      was required to be disclosed by a governmental authority, provided that the party subject to such requirement to disclose gives the other prompt written notice of the requirement.

69.5    The obligations of confidentiality in this clause shall not be affected by the expiry or termination of BBFC.online or any Member’s membership of it.

69.6    The BBFC shall be entitled to disclose information as is necessary for the efficient operation of BBFC.online, which shall include disclosure:

69.6.1     to the public, of details of all works which have received an Online Classification;

69.6.2     to Aggregator Members, where a work to which they hold digital distribution rights has not yet received an Online Classification, of information regarding the status of those works; and

69.6.3     to Content Provider Members, of information relating to the ability of their licensed Aggregator Members to use the Licensed Materials and to Aggregator Members, of information relating to the ability of the Content Provider Members to make the Licensed Materials available to such Aggregator Members under the Scheme (e.g. technical specifications).

Assignment

70.  No Member may assign, transfer, sub-licence or sub-contract any of its rights or obligations under these Terms and Conditions without the prior written consent of the BBFC.  The BBFC may assign, transfer, sub-licence or sub-contract its rights and obligations under these Terms and Conditions without consent, provided that it gives advance notice to the Customers.

Waiver

71.     Any failure or delay by the BBFC to exercise or enforce any right conferred by these Terms and Conditions shall not be deemed to be a waiver of such right.

Entire Agreement

72.1   These Terms and Conditions (incorporating the Online Licence (for Members) and any BBFC practice guidelines (including practice and instructions set out on the BBFC website)) represent the entire agreement between the BBFC and each Customer concerning the subject matter of these Terms and Conditions, and supersede all prior purchase orders, written terms and conditions, written or verbal representations, advertising or statements relating in any way to the subject matter of these Terms and Conditions (incorporating the Online Licence (for Members) and any BBFC practice guidelines).

72.2   Each Customer acknowledges that in agreeing to these Terms and Condtions it has not relied on any representation, warranty, undertaking, promise or other assurance (whether contractual or otherwise) given by or on behalf of the BBFC except those set out in these Terms and Conditions (incorporating the Online Licence (for Members) and any BBFC practice guidelines), and waives all rights and remedies, which, but for this clause might be available to it in respect of such representation, warranty or other assurance, provided that nothing in this clause shall limit or exclude any liability for fraudulent misrepresentation.

Severability

73.1   If any provision of these Terms and Conditions is found to be invalid or unenforceable by a court of law of competent jurisdiction, such a finding shall not affect the other provisions of these Terms and Conditions and all provisions of these Terms and Conditions unaffected by such a finding shall remain in full force and effect.

73.2   If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted or modified, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

Variations

74.1    These Terms and Conditions may only be varied in writing by means of variation signed in writing by the BBFC.  The BBFC will give the Custiomers 6 weeks’ notice of any changes to the Terms and Conditions, such notification to be made on the BBFC’s website.

Relationship

75.1 Nothing in these Terms and Conditions shall constitute, or be deemed to constitute, a partnership between the BBFC and any of its Customers nor shall it constitute, or be deemed to constitute, any Customer as the agent of the BBFC for any purpose.

75.2    Nothing in these Terms and Conditions or otherwise gives any Customer any rights of ownership in BBFC.online which shall remain the sole property of the BBFC.

Third Party Rights

76.1 These Terms and Conditions are made solely for the benefit of the BBFC and the Customers and are not intended to benefit, or be enforceable by, any other person.

76.2    The right of the parties to terminate rescind or agree any amendment, variation, waiver or settlement under these Terms and Conditions is not subject to the consent of any person who is not a party.

Communications

77.1    BBFC shall be entitled to assume that any signature or other communication (including electronic communications and submissions made via the BBFC website) from a Customer has been fully authorised by that Customer.

Notices

78.1      Save where otherwise expressly stated in these Terms and Conditions, a notice given under these Terms and Conditions:

(a)              shall be in writing in the English language (or be accompanied by a properly prepared translation into English);

(b)              shall be sent:

In the case of the BBFC:

Address:                                  3 Soho Square, London W1D 3HD

For the attention of:           BBFC.online Manager

Fax:                                          020 7440 0291

Email:                                      bbfc.online@bbfc.co.uk

or such other address as the BBFC may specify for this purpose on its website.

In the case of a Customer which is a Member, for the attention of the person, and to the address, fax number or e-mail address given by them in their application to become a Member, or in the case of other Customers such other person, address, fax number or e-mail address as the Customer may have notified to the BBFC in the course of dealings with the BBFC; and

(c)              shall be:

(i)            delivered personally; or

(ii)            sent by fax or e-mail; or

(iii)         sent by pre-paid first class post, recorded delivery or registered post; or

(IV)         (if the notice is to be served by post outside the country from which it is sent) sent by registered airmail.

78.2      A notice is deemed to have been received:

(a)              if delivered personally, at the time of delivery; or

(b)              in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by pre-paid first-class post or by personal delivery before the end of the next business day; or

(c)              in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or

(d)              in the case of registered airmail, five days from the date of posting; or

(e)              if deemed receipt under the previous paragraphs of this clause is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.

78.3      To prove service, it is sufficient to prove that the notice was transmitted by fax to the correct fax number or e-mail address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

Governing Law And Jurisdiction

79.1 The terms and conditions of these Terms and Conditions will be governed by and construed in accordance with English law and the Customers irrevocably agree that the English courts shall have jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and Conditions and the Customers irrevocably submit to such jurisdiction

79.2    Each Customer irrevocably waives any objection which it may have now or in the future to the courts of England being nominated for the purpose of this clause on the ground of venue or otherwise and agrees not to claim that any such court is not a convenient or appropriate forum.

79.3    Any Customer who is not established in England for the purpose of service of proceedings shall appoint, and notify to the BBFC on applying to become a Customer, a person being a partner in a firm of solicitors in England to accept service of all legal process arising out of or connected with these rules and the online licence and service on such person (or any substitute subsequently notified to the BBFC) shall be deemed to be service such Customer.  Except upon such a substitution any such Customer shall not revoke any such authority or appointment and shall at all times maintain an agent for service of process in England and if any such agent ceases for any reason to be an agent for this purpose shall forthwith appoint another agent and advise the BBFC accordingly.

Schedule 1

Online Classification Procedures

A) Catalogue Works: requests for Online Classification

NB: All VRA Works submitted before 31 December 2010 have an Online classification (OFC) from that date. The following procedure applies to all Works viewed by BBFC for video classification thereafter. (‘post 2010’).

All requests should be submitted through the BBFC extranet as follows:

1. Identify the relevant work
2. Click on ‘Get Online Classification’
3. Enter Purchase order details (if required)
4. Click ‘confirm’

Upon successful classification, the Work will automatically be given an Online Classification and the Member will receive a notification email in the form a daily digest listing all the Works given an Online Classification in the previous 24 hours. An electronic black card will be made available for collection via the extranet. An invoice will be issued to the Content Provider Member.

B) Catalogue Works (post 2010): requests for Online Classification where VRA rights are held by a third party

Procedure:

Content Providers

Content Provider Members must email ofcrequests@bbfc.co.uk with details of the Work.

- If the Work has been classified under the VRA but does not yet have an Online Classification, BBFC will provide an Online Classification and supply the OFC number to the applicant. A charge will be made for this (see Schedule 6).

- If an Online Classification already exists, the associated OFC number will be supplied to the applicant. A charge will be made for this (see Schedule 6).

In both cases, the VRA certificate will remain with the entity that obtained the VRA classification but the Online Classification and associated OFC number can be used by the Content Provider.

Aggregators

The Aggregator Member may access the BBFC extranet to receive details of all Works granted an OFC, and to attain the EBC, ECI, and other classification assets.

The Aggregator Member must email ofcrequests@bbfc.co.uk with details of the work. BBFC will:

• If the Work has been classified under the VRA but does not yet have an Online Classification, BBFC will provide an Online Classification and supply the OFC number to the applicant. A charge will be made for this (see Schedule 6).
• If an Online Classification already exists, the associated OFC number will be supplied to the applicant. A charge will be made for this (see Schedule 6).

In all cases, the VRA certificate will remain with the entity that obtained the VRA classification but the Online Classification and associated OFC number can be used by the Aggregator Member.

If an application is made for a VOD-only classification, an OFC will automatically be issued to the submitter, on successful classification.

Schedule 2

Online Licence

(As exhibited at www.bbfc.co.uk )

Schedule 3

Text to be displayed on Aggregator Member’s Distribution Channel

“We are Members of BBFC.online. This is a voluntary service run by the British Board of Film Classification to give consumers clear information about the content of films, programmes and other video works, using BBFC classification symbols and consumer advice in a way that consumers are familiar with from DVDs and film-going. The service helps people to make informed decisions about their own and their children’s internet viewing. If you have any comments about the classification information we have displayed, please contact us at [help@aggregator.com] in the first instance. If you have any comments on the classification of a particular video, please contact feedback@bbfc.co.uk.”

Schedule 4

Compliance Failures

This list is indicative and non-exhaustive.

Default responsibility is indicated by

(M) – all Members

(A) – Aggregator Members

(C) – Content Provider Members

Simple Mistakes

• Impossible to contact principals (M)
• Communication Issues (M)
• Dead / Inaccurate links (A)
• Display Issues (M)
• Minor and inconsequential differences between material as classified and material as supplied (C)

Fundamental Issues

• Failure to correct simple mistakes (M)
• Multiple or serial simple mistakes (M)
• Major or significant differences between material as classified and material as supplied (C)
• Placing of inappropriate adverts next to classified content (A)
• Linking to sites offering obscene or illegal content, or other content likely to bring the BBFC or BBFC.online into disrepute (A)
• Requests to take down material not acknowledged (M)
• Mis-labelling (other than R18) (M)
• Unauthorised marketing involving BBFC intellectual property (M)

Gross abuse of Scheme

• Repeated or continued refusal / failure to handle / forward complaints (M)
• Repeated or continued refusal / failure to process compliance changes (M)
• Refusal to allow (or delay in allowing) BBFC auditing (M)
• Refusal / failure to pay membership or compliance charges (M)
• Supplying licensed materials to non-BBFC.online Members other than in accordance with BBFC Terms and Coditions (M)
• Incorrectly labelled R18 material (M)
• Bringing the BBFC or BBFC.online into disrepute (M)
• NB: This list is not exhaustive and may be altered by the BBFC at any time during the compliance process if any action fails to meet the standards set out in BBFC’s Terms and Conditions and the practice guidelines.

Schedule 5

Text for use in acknowledging a complaint forwarded to BBFC

“Due to the nature of your complaint, it should be dealt with by the BBFC, which oversees BBFC.online. Please contact the BBFC with details of your complaint at BBFC.online@bbfc.co.uk”

Or

“Because you remain unsatisfied with our attempt to address your complaint, it should be dealt with by the BBFC, which oversees BBFC.online. If you wish to pursue your complaint you can do so by sending details to BBFC.online@bbfc.co.uk”

Schedule 6

BBFC.online Fees

As published at www.bbfc.co.uk