IT-TLETTAX-IL LEĠIŻLATURA
P.L. 6408
Dokument imqiegħed fuq il-Mejda tal-Kamra tad-Deputati fis-Seduta Numru 450 tal-20 ta’ April 2021 mill-Ministru fl-Uffiċċju tal-Prim Ministru.
______Raymond Scicluna Skrivan tal-Kamra
PUBLIC BROADCASTING SERVICES LTD – PUBLIC SERVICE OBLIGATION AGREEMENT
*20520. L-ONOR JOSEPH ELLIS staqsa lill-Ministru fl-Uffiċċju tal-Prim Ministru: B'referenza għar-risposta għall-mistoqsija parlamentari 20380, jista' l-Ministru jpoġġi kopja tal-ftehim tal-Public Service Obligation Agreement konkluż mal-Public Broadcasting Services Ltd fuq il-Mejda tal-Kamra kif kien mitlub f'dik il-mistoqsija? Jista' jpoġġi wkoll kopja tad- deċiżjoni tal-Bord ta’ Sorveljanza fuq Għajnuna Mogħtija mill-Istat fir-rigward ta' dan il- ftehim?
16/04/2021
ONOR. CARMELO ABELA: Qed inpoġġi fuq il-mejda tal-Kamra l-ftehim tal-PSO. Dwar it-tieni mistoqsija ninforma lill-Onor. Interpellant li din hija proċedura interna.
Seduta Numru 450 20/04/2021 Mistoqsija Parlamentari 20520 Seduta 450
PUBLIC SERVICE OBLIGATION AGREEMENT (the "Agreement")
AN AGREEMENT entered into this 1sr day of September 2020
BETWEEN
(A) Of the one part THE GOVERNMENT OF MALTA, hereon represented by Mr Mario Cutajar in his capacity as Principal Permanent Secretary (hereinafter referred to as the "Government");
AND
(B) Of the other part PUBLIC BROADCASTING SERVICES LIMITED, a duly established broadcast service provider having its registered office at No. 75, St. Luke's Road, G'Mangia, Pieta, Malta, bearing compan)' registration number Cl3140 hereon represented by Dott. Toniu Portughese, in his capacity as Chairman of the said company,
(hereinafter referred to as "PBS").
(The Government and PBS are hereinafter collectively referred to as the "Parties" or separately as "Party")
WHEREBY IT IS BEING PREMISED THAT:
i. The Government declares that an independent public broadcasting service is essential to a democracy, and the Government recognizes PBS as the sole company catering for public broadcasting, which guarantees that its programmes are presented in a balanced and impartial manner as provided for by the Constitution of Malta. PBS should, as the national broadcaster, represent and fairly treat different views and values present in society. PBS should also carry programmes that fulfil a public service obligation, and Government shall support PBS in this regard, and for this end is entering into this Public Service Obligation Agreement; ii. Considering that the obligation of PBS to broadcast public service obligation programmes emanates also from the Broadcasting Act, and other rules and regulations currently in force, as well as from applicable European and international covenants; iii. The Parties agree that all the above-mentioned should be institutionally safeguarded by the setting up of and through this Public Service Obligation Agreement; iv. PBS shall not receive any subsidies for its public service obligations, other than these stipulated in this Agreement; v. Since it is unlikely that PBS will be able to provide on a profitable basis its public service obligation, and the Government acknowledges the risk that same might not be provided at all, or might be commenced and then terminated based on normal commercial considerations, Government hereby therefore agrees to secure a stable and efficient provision of such services from a well-established and economically stable provider. Such services must be based upon minimum obligations required to fulfil the social, democratic and cultural needs of Maltese society, but which would not be acceptable to a commercial operator operating on a normal commercial basis; In order for any service provider to undertake the public service obligations as provided for in this Agreement, the Government recognises the need of the service provider to be compensated for any economic loss and a reasonable profit as a result of operating such public service remit under the public service obligations placed upon it by Government; lofl6 r vii. The Govenunent has therefore identified PBS as a well-established and economically stable provider of the public service obligations required, both through its past working relationship with PBS and through business and financial information provided to the Government by PBS; viii. PBS is willing to provide the services, and to accept the public service obligations, as provided for in this Agreement. tx. This Agreement is drawn up in line with the provisions of Commission Decision 2012/21/EU of 20 December 2011 on the Application of Article 106(2) ofthe Treaty on the Functioning of the European Union to State aid in the form of Public Service Compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ L 7, 11.1.20 12, page 3 ).
THEREFORE, PURSUANT TO THE ABOVE, THE PARTIES HEREBY AGREE THAT:
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires and unless otherwise agreed to in writing by the Parties, the following interpretation is to be attributed to the terms listed below:
1.1.1 "Non-PSO Services" means those services listed in clause 3 hereof;
1.1.2 "PSC" or "Public Service Compensation" means the compensation to be granted by the Government to PBS in terms of this Agreement for the PSO Services carried out by PBS, as calculated in terms of clauses 10 and 11 hereof; ·
1.1.3 "PSO" means the Public Service Obligation entrusted to PBS by the Government in terms of the arrangement to operate the Services in terms of this Agreement;
1.1.4 "PSO Services" means the Services, excluding Non-PSO Services;
1.1.5 "Public Service Obligation" means an arrangement whereby the Government entrusts an undertaking with a particular public service task for which the undertaking is compensated;
1.1.6 "Services" means the operating of a national media broadcasting service providing a wide range of programming and a balanced and varied broadcasting offer that serves the social, democratic and cultural needs ofMaltese society, to be carried out by PBS in terms of the PSO, as delineated in further detail in clause 2 hereof;
1.1.7 Significant New Audio-visual Service" means a service which:
a. is provided for the first time by PBS, or a modification to an existing service; b.requires an annual expenditure by PBS in excess ofEuro (250,000); and c. will be financed, in part or in full, by the PSC. 2ofl6 r 2. Grant of PSO to Operate Services
2.1 The Government hereby provides PBS with a sole and exclusive PSO, and PBS hereby accepts the grant of such PSO:
Provided that at all times, PBS shall act according to and in full compliance with its PSOas stipulated hereunder.
2.2 Pursuant to the Services, PBS shall operate and maintain the following: 2.2.1 Television channels: 2.2.1.1 TVM 2.2.1.2 TVM 2
2.2.2 Radio Stations: 2.2.2.1 Radju Malta 2.2.2.2 Radju Malta 2 2.2.2.3 Magic Malta
2.2.3 Online Services 2.2.3.1 Tvm.com.mt
2.3 The Parties agree that in order for PBS to satisfy its PSO, PBS shall at all times, during the period of this Agreement, satisfy at least all the following minimum criteria:
2.3.1 PBS shall ensure the transmission of the following:
a. regular daily news bulletins in Maltese, with the main news bulletin not being of a lesser duration than 20 minutes and at least a once daily TV news bulletin in English. Furthermore at least one ofthe news bulletins in Maltese has to provide facilities for the hearing impaired. The main news bulletin shall include both local and international news;
b. regular daily news bulletins on at least one of the radio stations that PBS operates with at least one bulletin thereof being in English;
c. regular daily bulletins covering local sporting events of a current nature and at least one weekly programme covering local sports;
d. sports competitions, particularly those that are hosted in Malta or in which Maltese athletes or teams participate;
e. programmes in adherence with the Constitutional or legal requirements imposed on PBS;
f. one-off parliamentary debates on TV;
g. all parliamentary debates on radio;
h. events of a national character as determined from time to time by Government; 3of16 ~ i. public service announcements according to such terms as may be established by the Government from time to time;
j. current affairs programmes and discussion programmes dealing with topics of a social, cultural, educational, environmental, economical, industrial or political nature;
k. programmes dealing with religious topics and the transmission of Mass on Sunday and certain Holy days of Obligation;
I. programmes that have children as their principal audience;
m. drama programmes in Maltese, with preference being given to original drama in Maltese;
n. programmes that are cultural in nature but especially those that enhance the Maltese language, heritage, history, culture and the arts;
o. programmes that are focused on Gozo and in particular that highlight Gozitan society, culture and way of life,
p. programmes that focus on Maltese communities abroad;
q. general information programmes;
r. programmes that are educational in nature;
s. programmes promoting information society.
2.3.2 PBS shall also provide online services in connection with its PSO Services, including for the avoidance of any doubt:
a. information on the television and radio channels operated by PBS, and information on their schedule and programmes;
b. daily news overviews, which shall consist of text and images, and may include audio and audio-visual elements, as well as the transmission of the daily TV news bulletin;
c. an on-demand service for the programmes broadcast on the television and radio channels operated by PBS.
2.3.3 Subject to technical developments and current trends, PBS shall also provide further audio-visual services over the internet or other distribution platforms, provided that such services effectively contribute to fulfilling the PSO, including but not limited to the development of a software application to broadcast PSO content on mobile devices:
Provided that in the case of a Significant New Audio-Visual Service, PBS shall seek the consent ofthe Government. In such instance, prior to granting such consent, the Government shall carry out an evaluation procedure to consider whether such service serves the social, democratic and cultural needs of Maltese society, while duly taking into account its potential effects on trading conditions and competition.
4 ofl6 2.3.4 With regard to programme content, PBS shall focus on the reach, quality, impact and value for money of the programmes transmitted. In this regard, particular emphasis should be placed on the following criteria:
a. creativity and originality; b. relevance to the need of the programme schedule; c. high aesthetic and technical quality; d. respect of human dignity and fundamental rights; e. freedom from stereotypes, especially gender, racial and age stereotypes; f. the skilful use of the Maltese language· in scripts.
3. Non-PSO Services
3.1 The following commercial activities may be performed by PBS in order to obtain revenue, and such activities shall constitute Non-PSO Services:
a. advertising, including the sale of advertising space and the transmission of programmes; b. teleshopping; c. sale of airtime for programmes; d. the use of premium rate numbers in prize games; e. hire of facilities; f. sponsoring; g. merchandising; h. e-commerce; i. the sale of programmes; j. the offering of services against payment;
4. Services
4.1 The Parties hereby agree that PBS shall provide the Services for the duration of this Agreement. PBS may either produce the Services itself or else sub-contract their production, provided that in the latter eventuality PBS shall maintain editorial and artistic control of the production.
4.2 An appropriate authority or appointed body that is effectively independent from the management of PBS will monitor the application of the PSO in a transparent and effective manner (on a yearly basis) and will have the power to impose appropriate remedies insofar as is necessary to ensure respect of the PSO.
5. New Ways of Providing Services
5.1 Should PBS seek to modify the fundamental basis whereby the Services are provided, PBS shall notify Government before introducing such modifications and Government shall signal its approval or otherwise within one month of PBS's notification.
5.2 Government also retains the right to also modify the basis whereby the Services are provided.
5.3 Whenever the scope of this Agreement needs to be extended to cover new services in accordance with sections 5.1 and 5.2, the definition ofPSO Services should be modified accordingly.
5 of 16 6. Authorisation
6.1 It shall be the duty of PBS to ensure that it has a valid transmission licence at all times and should PBS lose its licence, it shall be deemed to have relieved the Government of any obligation in this Agreement and it shall be obliged to refund [the entire sum of moneys passed to it under the terms of this Agreement] within 30 days of the termination or expiry of its licence:
Provided that the costs of complying with and the granting of any such licence shall be borne solely by PBS.
7. Period of Agreement
7.1 This Agreement, whether or not modified in terms of clause 20 of the Agreement, shall be for a pericd of five (5) years from the Effective Date, unless terminated ea!"lier either by agreement between the Parties or in accordance with this Agreement.
8. Non- Renewability
8.1 For the avoidance of doubt, this Agreement cannot be renewed beyond its applicable period except by the Parties entering into a new contract. The Parties agree that six (6) months before the end of this Agreement they will enter into negotiations with the aim of reaching agreement on a new contract provided that either of the Parties may, in their absolute discretion, terminate such negotiations and seek to enter into negotiations with other parties.
9. Services To be Executed According to Law
9.1 The Services shall be executed in accordance with the relevant legislative provisions and PBS may not suspend or terminate for any reason whatsoever any of the Services contracted except with the express consent of the Government.
Government may direct PBS to suspend or terminate any of the Services contracted provided that Government will remain liable to pay the full sum agreed to in respect of such suspended or terminated Services.
10. Financial Compensation for the Services
10.1 GrantofPSC
10.1.1 In consideration of PBS fulfilling the PSO, Government shall grant a PSC to PBS.
10.1.2 The amount of the PSC shall be determined by the Government in a manner that ensures that PBS can fulfil its PSO on the basis of an economical, cost-effective and expedient $ 6ofl6tff administration. The amount of the PSC shall thus be limited to the amount required for PBS to be able to cover the anticipated net costs of the PSO Services for a five (5) year period, and shall be updated annually on a rolling basis for the duration of this Agreement. The level of compensation shall in no case exceed the level of fair compensation as defined in Commission Decision 2012121/EU
10.2 Determination
10.2.1 The net costs of the PSO Services shall correspond to the costs incurred for fulfilling the PSO Services after deduction of the total net revenue generated by PBS from PSO services and allowing for a reasonable profit to be determined as a rate of return on capital that takes into account the degree of risk incurred. --
10.2.2 All costs incurred for fulfilling the PSO Services shall be taken into consideration when determining the net costs of the PSO Services:
Provided that where PSO Services and Non-PSO Services share the same inputs:
a. input costs which are used to perform PSO Services and Non-PSO Services simultaneously should be allocated proportionately to PSO Services and Non-PSO Services respectively, whenever it is possible to do so in a meaningful way;
b'" in other cases, the common input costs shall be allocated on the basis of the difference in PBS's total costs with and without Non-PSO Services, i.e. costs that are entirely attributable to PSO Services, while benefitting also non-PSO Services, can be entirely attributed to the PSO Services.
10.2.3 Any costs specific to Non-PSO Services shall be clearly identified and separately accounted, and shall not be taken into account in determining the cost of fulfilling the PSO Services.
10.3 Overcompensation
10.3.1 The compensation granted for the PSO Services must not result in any overcompensation.
The Government shall carry out regular checks, or ensure that regular checks are carried out, at least every three years during the period of entrustment and at the end of such period.
Where PBS has received compensation in excess of the amount determined, the Government shall require PBS to repay any overcompensation received. The parameters for the calculation of the compensation can be updated for the future.
10.4 PSO Reserve
10.4.1 Where the PSC granted by the Government is higher than the net cost of the PSO Services incurred in the previous year, PBS shall allocate the PSC surplus to a reserve (the "PSO Reserve") in order to withstand cost and revenue fluctuations:
7 ofl6 Provided that the PSO Reserve shall be limited to the amount of I 0% of the amount of the average annual compensation due under this Agreement. Such overcompensation shall be carried forward to the next period and deducted from the amount of compensation payable in respect of that next period;
Provided further that PBS shall be obliged to refund to Government any annual surplus exceeding the amount of 10% of the annual costs for the fulfilment of the PSO Services.
10.4.2 Where the net cost of the PSO Services incurred in the previous year is higher than the PSC granted by Government, the cost will be borne by PBS.
10.5 Special PSO Reserve
10.5.1 By way of exception, PBS shall be permitted to create a reserve (a "Special PSO Reserve") and allocate an amount in excess of 10% of the annual expenses for the fulfilment of the PSO, which shall only be used for the purpose of financing public service activities. The Special PSO Reserve shall be used solely to fund specific one-off projects of the following kind:
a. Major restructuring measures that are necessary to maintain the continuous operation of PBS for the fulfilment of its public service mission within a well-defmed time period;
b. Major technological investments that are foreseen to occur at a certain point in time and are necessary for the fulfilment of the PSO.
All such projects shall be clearly distinct from projects in the context of the on-going business operations of PBS. Cross-subsidisation of commercial activities will not be justified.
10.5.2 At the time that a Special PSO Reserve is created, or at the time funds are allocated to such reserve, if this occurs later, the relevant project shall be specifically described, and both its realisation and its total costs shall be sufficiently certain. A Special PSO Reserve may be created not earlier than (two) years prior to the expected start of the realisation of the project concerned.
10.5.3 A Special PSO Reserve may only be created if the anticipated total costs ofthe project concerned exceed the amount ofEuro 1 million. The maximum amount of a special PSO reserve shall be limited to the present value of the anticipated costs of the project.
10.5.4 The special PSO Reserve shall be reversed and the funds therein shall be refunded to Government if the project concerned is not commenced within a maximum period of two years after the time which was specified as the anticipated commencement of the implementation of the project at the time the Special PSO Reserve was created.
10.5.5 The creation of, allocation of funds to and use or reversal of Special PSO Reserves shall require the consent of the Government.
8 ofl6 ryj' 10.6 Government Review
10.6.1 The Government may, at its sole discretion, undertake an in-depth review of the financial situation of PBS, including a review of the adequacy or otherwise of the PSC to enable PBS to fulfil its PSO ..
10.6.2 In carrying out any such review, the Government may take account of the following: a. the existing financial resources available to PBS;
b. the current level ofPSO granted to PBS;
c. the level of revenue generated through the commercial activities by PBS;
d. such other matters which the Government may consider relevant.
Any public service reserves existing at the end of such period shall be taken into account for the calculation of the financial needs of the public service broadcaster for the next period.
PBS shall in all instances co-operate with the Government in the exercise of any review.
11. Amount ofPSC
11.1 The Parties agree that:
11.1.1 The PSC for the period October 2019 to September 2020 that Government shall pay PBS shall be the sum of five million, five hundred thousand Euro (€5,500,000) as gross payment (exclusive of value added tax, if any);
11.1.2. The PSC for the period October 2020 to September 2021 that Government shall pay PBS shall be the sum of five million, seven hundred and twenty thousand Euro (€5,720,000) as gross payment (exclusive of value added tax, if any);
11.1.3 The PSC for the period October 2021 to September 2022 that Government shall pay PBS shall be the sum of five million, nine hundred and forty eight thousand and eight hundred Euro (€5,948,800) as gross payment (exclusive of value added tax, if any);
11.1.4 The PSC for the period October 2022 to September 2023 that Government shall pay PBS shall be the sum of six million,_ one hundred and eighty six thousand, and seven hundred and fifty two Euro (€6, 186,752) as gross payment (exclusive of value added tax, if any);
The PSC for the period October 2023 to September 2024 that Government shall pay PBS shall be the sum of six million, four hundred and thirty four thousand and two
9ofl6 ~ hundred and twenty two Euro (€6,434,222) as gross payment (exclusive of value added tax, if any)
11.1.6 The Government shall effect payment of the PSC quarterly in advance, each payment being equal to 25% of the total yearly anticipated net costs of the PSO Services.
12. Accounts
12.1 PBS shall be obliged to maintain detailed accounts for the Services contracted to it.
12.2 In order to ensure transparency and accountability, PBS shall be required to maintain a clear and appropriate separation between PSO Services and Non-PSO Services, including a clear segregation of accounts.
12.3 In relation to accounting standards and requirements, PBS shall comply with the requirements of any applicable laws. In particular, PBS shall ensure that: a. the internal accounts corresponding to different activities, i.e. PSO and Non-PSO Services, must be separate; b. all costs and revenues shall be correctly assigned or allocated on the basis of consistently
applied and objectively justifiable cost ~ccounting principles; and c. the cost-accounting principles according to which separate accounts are maintained shall be clearly established.
12.4 On the revenue side, PBS shall give detailed account of the sources and amount of all income .accruing from the performance ofPSO and Non-PSO Services.
12.5 Within six (6) months of the end of each financial year, PBS shall present to Government a report, certified by a suitably qualified financial expert, which shall:
a. Confirm whether all amounts payable by the Government as compensation in terms of this Agreement have been properly computed in accordance with the terms of this Agreement; and b. Provide full details as to the methods used in arriving at such calculations; and if it is concluded that all or any of such payments have been improperly calculated, it shall provide an estimate of the amounts actually due.
12.6 Government may, in its absolute discretion, request PBS to further supply regular reports in such format as may be required by it and to appoint, at its own expense, persons of its choice to examine all accounting records and/or to independently audit the accounts. 10 of 16 rf 13. Good Faith
13.1 The Parties shall exercise the utmost good faith in the fulfilment of their obligations under this Agreement. In particular PBS undertakes not to enter into any schemes, arrangements or otherwise, under which the amount of PSC due by Government would not reflect the costs incurred by PBS in providing the PSO Services.
14. Force Majeure
14.1 Neither Party shall be deemed to be in breach of this Agreement, or otherwise be liable to any damages arising therefrom, by reason of any suspension or delay in performance, or non performance, of any of its obligations hereunder, in the eventuality that such delay or non performance is due to force majeure.
Provided that the Party so affected shall notify the other Party forthwith in writing, stating the nature and extent of the force majeure.
14.2 In the eventuality that the force majeure in question prevails for a continuous period in excess of three (3) months, the Parties hereby agree that they shall enter into bona fide discussions with a view to alleviate its effects, or to agree upon such alternative arrangements as may be fair and reasonable.
14.3 For the purposes of this Agreement, force majeure shall mean in relation to either Party, any circumstance which is beyond the reasonable control of either Party. Such circumstance shall be inclusive of, but shall not be limited to:
• ActofGod; • War; • Civil Commotion; • Fire; • Flood; • as well as other causality or condition which prevents that Party from carrying out its obligations under this Agreement.
15. Disputes
15.1 In the event of any dispute, claim or disagreement, arising from or relating to this Agreement or the breach thereof, the Parties hereto declare that they shall do their utmost to resolve such dispute, claim r disagreement. To this end, the Parties bind themselves to consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution atisfactory to both Parties:
11 ofl6 ~ Provided that if the Parties do not resolve the dispute within thirty (30) days, upon notice by either Party to the other Party, all disputes, claims or differences shall be submitted to a qualified mediator, appointed by common agreement of the Parties.
15.2 In the eventuality that the mediation is not successful or is not concluded within fifteen (15) days of the matter having been referred, the Parties agree to refer the matter to arbitration, before a sole arbitrator, in accordance with the Arbitration Act and the rules and regulations of the Malta Arbitration Centre:
Provided that any remedial action ordered by the Malta Arbitration Centre shall be carried out within seven (7) days of the date of the award unless a longer period is specified.
16. Termination Clause
16.1 Event of Default
16.1.1 The occurrence of any one or-more of the following events shall constitute an "Event of Default":
a. If PBS fails to provide or execute, whether in full or in part, the Services in terms ofthis Agreement; b. If PBS goes in voluntary liquidation, or is to be liquidated by order of the Court, or in any case where a liquidator is duly appointed in relation to PBS or makes any arrangement with its creditors, provided that voluntary liquidation shall not include any arrangement made for the purpose of amalgamation or reconstruction of the company, and in such a manner that the company resulting there from effectively agrees to be bound by or assumes the obligations imposed on that other party under this Agreement provided that such amalgamation or reconstruction is previously sanctioned by the Government; c. If PBS ceases, or threatens by notice in writing to cease, to carry on business; d. If PBS no longer holds a transmitting licence; e. If PBS knowingly gives fraudulent written information to the Government which is incorrect or misleading; f. If PBS fails to keep proper books of accounts or otherwise fails to comply with the requirements contained in this Agreement relating to the PSC and to its refund; g. If PBS commits a breach of any provision of this Agreement which if capable of remedy has not been remedied within seven (7) days;
16.1.2 In the event of an Event of Default, the Government may, in addition to any other remedies which may be available in terms ofthis Agreement or oflaw:
a. Issue a notice to PBS requiring PBS to remedy or resolve the matter within seven (7) days of such notice, and where the matter is not duly resolved within such time period, the Government may furthermore avail itself of paras (b) - (d) o( this clause;
b. By notice to PBS, terminate the Agreement with immediate effect; or
12 ofl6 c. By notice to PBS terminate the Agreement on such date as the Government in its sole discretion shall stipulate in the notice; or/and d. Take any action available in terms of law;
Provided that, in addition to the above, the Government may also impose a penalty on PBS amounting to 10% of the PSC, which penalty shall not be subject to abatement, the Parties hereby waiving, for the purposes of articles 1122(l)(b) and 1138 of the Civil Code, any right iri this respect, and shall be without prejudice to the right to Government to claim damages in addition to such penalty.
16.2 Termination by either Party
16.2.1 Without prejudice to any other remedies available in terms of this Agreement and/or otherwise in terms oflaw, either Party shall be entitled to terminate this Agreement by written notice to the other where a Party is found in default by the Malta Arbitration Centre and such Party fails to rectify the default within the stipulated time:
Provided that the Party resorting to termination shall notify the other Party in writing of its intention and allow the other party a further fifteen (15) days to rectify the default;
16.3 The right to terminate this Agreement as stipulated herein shall be without prejudice to any other right or remedy of either Party in respect of the breach concerned, if any, or of any other breach.
16.4 Any waiver by either Party of a particular breach of any provision or this Agreement shall not be interpreted as a waiver to any subsequent breach of the same provision or of any other provision thereof.
17. Consequences of Termination
17.1 Without prejudice to any other right or remedy applicable in terms of this Agreement and/or otherwise in terms of law, the Parties agree that upon termination of this Agreement for any reason, the following shall apply: a. Outstanding unpaid invoices issued by PBS in respect of the Services rendered shall become immediately payable by the Government, and amounts due in respect of Services rendered prior to termination but for which an invoice has not been submitted shall be payable immediately upon submission of an invoice. b. PBS shall have no right to file any claim against the Government for compensation for loss of exclusive rights, loss of goodwill or any similar loss;
Subject as otherwise provided herein, and referable to any rights or obligations which have accrued prior to termination, neither Party shall have any further obligation to the other under this Agreement.
13 ofl6 »--- 18. Indemnity Clause
18.1 PBS shall indemnify and holds harmless the Government, its employees, agents, successors and assignees from and against any and all liabilities, claims, actions, losses, damages, lawsuits and expenses, including legal expenses, excepting those as may be determined by the Malta Arbitration Centre, of whatsoever nature and kind imposed upon, and from or against proceedings including without limitation claims for personal injury or damage to property arising from the performance of any work in operating this Agreement or by any act whether of omission or commission by PBS, its employees, agents or subcontractors, and against and from all costs, liabilities and expenses incurred in respect of any such claim, action or proceedings.
18.2 This clause shall survive the expiration or revocation of this Agreement in connection only with events occurring during the tenure of this Agreement.
19. Government to Notify Re: Third Party Claims
19.1 The Government shall notify PBS of any claim or action made or instituted against it by any third party and shall grant PBS the opportunity to intervene in any suit so instituted and to defend such suit.
20. Modification of Agreement
20.1 In order to be valid, any amendments and supplements to this Agreement entered into .between the Parties must be done in writing.
21. Revocation of Previous Agreement
21.1 Parties agree that any previous contract regarding provision of Services, in whatever form entered into by the Government and PBS, shall be terminated with effect from the Effective Date of this Agreement.
22. Invalidity of Particular Clause
22.1 If any or some provisions of this Agreement are held by any court or other competent authority to be null and void, or unenforceable in whole or in part, such nullity, invalidity, or unenforceability shall be limited only to such clause in question, whereas the unaffected provisions shall continue to be valid.
23. Non-Assignability Of Agreement
23.1 This Agreement shall be binding upon and shall ensure to the benefit of the Parties hereto, their respective successors and permitted assignees provided, however, that no Party shall assign this Agreement in whole or in part or its interest in this Agreement except with the prior written consent of the other Pmty and provided further that the sub-contra~ to third ::~ rr(' 1 6 of any of the production of any of the Services shall not be considered as an assignment of the Agreement.
24. Effective Date
24.1 The Parties hereby agree that this Agreement shall be deemed to come into effect on 1st October 2019 (the "Effective Date") and that therefore the provisions of this Agreement shall be deemed to come into effect as from the Effective Date.
25. Notification
25.1 Unless otherwise specifically provided for herein, any notice required or permitted to be given hereunder shall be in writing and shall be: a. personally delivered by hand; or b. transmitted by postage prepaid registered mail (airmail, if international) or by internationally recognised courier service; or c. transmitted by facsimile or email, subject to a receipt being generated, to the other Party
as follows:
-- In the case of the Government the correspondence mentioned in this clause has to be addressed as follows:
"Attention: (name of person)"
In the case of PBS the correspondence mentioned in this clause has to be addressed as follows:: "Attention: (name ofperson)"
Any communication by one party to another, which requires notification for the purposes of this Agreement, shall be deemed to have been duly notified:
a. on the date when the delivery took place, if delivered by hand; b. on the date shown on the relative receipt if delivered by any other method; Either party may change its address for the purposes hereof by notice to the other party.
All notices hereunder and all documents delivered in connection with this transaction shall be either in the Maltese or in the English language.
26. Governing Law
26.1 This Agreeme~ is governed by and shall be construed in all respects in accordance with the Laws of Malt:~ the rules and regulations in force in Malta.
15 of16 AS WITNESS the hands of the Parties hereto or of their duly authorised representatives the day and year first above written.
Principal Permanent Secretary
For and on behalf of
The Government of Malta
Dott. Tonio Portughese
Chainnan
For and on behalf of
Public Broadcasting Services Limited
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