MARK ROBERTS MOTION CONTROL LIMITED – TERMS & CONDITIONS FOR HIRE, SUPPLY OF GOODS AND PROVISION OF SERVICES
These terms and conditions apply (in addition to any Quotation, estimate, confirmation or disclaimer document) in relation to any hire of Equipment, supply of Goods or provision of Services by the Company to any Customer.
1. INTERPRETATION AND CONSTRUCTION
1.1 In these Conditions, the following definitions shall apply:
“Charge(s)” means the applicable fees and costs of the Company to be charged by the Company to the Customer for:
- (a) the hire of Equipment by the Customer from the Company;
- (b) the purchase of Goods by the Customer from the Company;
- (c) the provision of Services to the Customer by the Company; and /or
- (d) any additional sums due pursuant to Condition 8 or as otherwise due from the Customer to the Company under the terms of any Contract.
“Company” means Mark Roberts Motion Control Ltd (Co No. 3545968) (trading as MRMC, MrMoco and Mark Roberts Motion Control) and its successors and assigns of Unit 3, South East Studios, Eastbourne Road, Blindley Heath, Surrey, RH7 6JP, UK.
“Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with Condition 17.1.
“Contract” means any contract or agreement between the Company and the Customer for the hire of Equipment, the purchase of Goods and/or Services which shall incorporate these Conditions and any other separate documentation including Quotations, emails, waivers, disclaimers or indemnity documentation that is expressed to be incorporated with and to form part of the Contract between the Company and the Customer.
“Customer” means the person or firm named in a Contract document as the person either hiring the Equipment or purchasing Goods and/or Services from the Company.
“Due Date” has the meaning set out at Condition 8.3.
“Equipment” means all articles and materials taken on hire from the Company by the Customer in the course of its business under the Contract.
“Film” has the meaning set out at Condition 4.15.
“Goods” means any goods to be supplied to the Customer by the Company (including any part or parts of them) under the Contract.
“Hire Period” means the period commencing on the day the hire of Equipment is either agreed in a booking or a Quotation to be the start of the period of hire of such Equipment, or, if earlier, the date when the hired Equipment leaves the Company’s premises, or such other date as agreed; and terminating at the end of such agreed hire period or when terminated in accordance with any of the Conditions.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“Large Rigs” means large, six-degrees-of-freedom camera motion control rigs currently known by the names of Titan, Milo, Bolt and Modula and including future successors or developments of these rigs which offer six degrees of freedom, with at least two metres of travel in the three translational axes of heave, sway and surge. For this purpose, “six degrees of freedom” shall mean that the body of the rig is free to change position as forward/backward (surge), up/down (heave), left/right (sway) translation in three perpendicular axes, combined with changes in orientation through rotation about three perpendicular axes, often termed pitch, yaw, and roll. It is acknowledged and agreed that the sixth degree of freedom, roll, is optional and, as such, a “Large Rig” would still be classed as such even if it did not have the roll, but that the other axes are critical for a rig to constitute a “Large Rig” for this purpose;
“Premises” means the Company’s premises at Unit 3, South East Studios, Eastbourne Road, Blindley Heath, Surrey, RH7 6JP, UK.
“Quotation” means a written quotation or email from the Company addressed to the Customer setting out (as applicable) the proposed Charges, the description of the hire of the Equipment and the Hire Period concerned and/or the description of the Goods or the Services concerned (including any amendment to these Conditions), all of which shall lapse 30 days from the date of such Quotation unless accepted in their entirety and unequivocally by the Customer before the expiry of such 30 day period either in writing or verbally, in which event the Company’s record of such verbal agreement or call shall be deemed conclusive (and such acceptance shall include the commencement of any applicable Hire Period unless otherwise agreed between the parties).
“Services” means the services (if any) to be provided by the Company to the Customer (including the installation, delivery, collection and maintenance of the Equipment and the provision of personnel (including Technician(s) and/or as otherwise set out in writing by the Company) as stipulated in the Quotation.
“Technician” means a technician/operator, either self-employed or a Company employee, that is arranged (at the request of the Customer or as a required condition of the hire of Equipment by the Company) to set-up, work with and dismantle the Equipment with and for the Customer.
“Traditional Motion Control” means each of the following areas of motion control technology:
- (a) TV or online commercials, meaning moving images created for the purpose of advertising a product and presented for short periods (typically between 15 to 120 seconds) through cinema, TV or on-line distribution channels;
- (b) TV dramas, typically meaning work that has been commissioned by a production company (for example, periodical entertainment shows or series commissioned by networks for public broadcast);
- (c) feature films, typically meaning work commissioned by film studios;
- (d) music videos; and
- (e) capturing images used for motion entertainment purpose (for example, theme park rides).
“US West Coast” means California, Oregon, Washington, Arizona, Nevada and Idaho.
1.2 In these Conditions, the following rules apply:
- (a) A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- (b) A reference to a party includes its personal representatives, successors or permitted assigns.
- (c) Any reference in these Conditions to a statute or statutory provision (such as the Sale of Goods Act 1979) is a reference to the statute or provision (including any subordinate legislation made under that statute) as amended or re-enacted.
- (d) (Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- (e) A reference to “writing” or “written” includes faxes and e-mails.
2. APPLICATION OF CONDITIONS
2.1 All Contracts between the Customer and the Company will incorporate these Conditions and any other documentation expressed to be incorporated into the Contract, to the exclusion of any other terms and conditions (including any terms or conditions which the Customer purports or attempts to apply under any purchase order, confirmation of order, specification or other document) or any term implied by law, (so far as is possible), custom or course of dealing.
2.2 In the event of any conflict or inconsistency between these Conditions and any Quotation or other document that is expressed in its body to form part of the Contract, then such Quotation or other document shall take precedence over these Conditions.
3. GEOGRAPHICAL RESTRICTIONS
3.1 The parties agree and acknowledge that the Company is prevented from:
- (a) supplying Large Rigs for Traditional Motion Control to Customers located in the US West Coast region; and
- (b) renting Large Rigs for Traditional Motion Control to Customers for a period longer than two months where such Equipment is used in any capacity in the US West Coast region, (together, the “Geographical Restrictions”).
3.2 If the Customer uses any Equipment hired in accordance with these Conditions in breach of the Geographical Restrictions then this shall constitute a material breach of the Contract and, without prejudice to any other right or remedy, the Company will be entitled to terminate the Contract for hire of Equipment or any Contract to provide further or remaining Services with the Customer.
4. HIRE OF EQUIPMENT CONDITIONS
4.1 The provisions of this Condition 4 shall apply to any and all Contracts between Customer and the Company for the hire/rental of Equipment and other than as specifically set out below shall not apply to any Contracts between Customer and the Company for the sale of Goods or provision of Services.
4.2 The Company will accept hire/rental bookings for the hire of Equipment agreed verbally, including by telephone, or in writing (in which event the Company’s record of such verbal agreement or call shall be deemed conclusive). Every such hire/rental booking however made shall be subject to these Conditions. Unless otherwise agreed by the Company, cancellation of booked or reserved Equipment within 24 hours of the time specified for the start of the Hire Period will incur a cancellation charge of 50% of the Charges for the Equipment hire concerned, an amount the parties agree is a genuine pre-estimate of loss arising from the hire not proceeding as planned.
4.3 It is the responsibility of the Customer to collect any Equipment hired in accordance with the Contract from the Premises. Notwithstanding the foregoing, if the Company otherwise agrees to deliver the Equipment to the Customer it will do so at its standard delivery cost as amended from time to time and such delivery will be a provision of Services and the cost thereof part of the Charges. The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on collection or delivery. The Equipment shall remain at the sole risk of the Customer during the Hire Period and any further term during which the Equipment is in the possession, custody or control of the Customer until such time as the Equipment is returned to the Company.
4.4 The Charges for the hire of Equipment shall commence on the day that is the start of the Hire Period, irrespective as to whether the Equipment leaves the Premises. The Hire Period terminates on the date specified in the Contract or when terminated under any of these Conditions, subject to Condition 4.5.
4.5 In the event that the Equipment is not returned to the Company at the end of the Hire Period, or is lost, damaged or destroyed (or made unrepairable) or is not returned to the Company in the same condition as it was at the start of the Hire Period (allowing for fair wear and tear), then the Hire Period shall be deemed to continue in respect of which the Charges shall continue to be payable and shall not terminate on the return of the Equipment but shall, as shall be notified by the Company to the Customer, either i) continue until such time as the Equipment is recovered and returned to the Company, or ii) continue, if it is damaged, until it is repaired and available for re-hire by the Company, entirely at the Customer’s expense, to the same condition it was in at the start of the Hire Period, or iii) continue, if it is destroyed or unrepairable, until such time as it is replaced by the Customer with an equivalent item or the full replacement cost thereof is paid to the Company. Any such additional hire Charges for lost, damaged or destroyed Equipment shall not exceed an amount equal to thirteen weeks hire of that Equipment but this shall not affect the Customer’s obligation to pay for the repair or replacement.
4.6 For the avoidance of doubt, title in and to the hired Equipment shall remain at all times with the Company , notwithstanding that the Customer shall be fully liable to the Company for any theft, loss, damage or destruction howsoever caused to the Equipment.
4.7 From the time the Equipment leaves the Company’s (or as the case may be a third party’s) premises and during the Hire Period or until the Equipment is returned to the Company, the Customer (subject to the other provisions of this Contract) shall indemnify the Company from and against all loss, theft, damage or destruction of the Equipment during such period from whatever cause the same may arise (fair wear and tear excepted) and shall ensure that a policy of insurance is effected covering the Equipment against all usual perils in accordance with Condition 11.
4.8 If the Equipment becomes defective during the Hire Period through no fault of the Customer, the Company may, at its discretion, having received notice of such defect from the Customer or the Company’s operator, either replace the Equipment or repair any defective part therein. Alternatively, the Company may, at its discretion, pay for the reasonable cost of the repair or, the replacement of the Equipment by a dealer approved by the Company for that purpose and on terms acceptable to the Company.
4.9 The Customer will at all times during the Hire Period:
- (a) keep the Equipment in its possession and under its control and not purport to sell, loan, assign, pledge or permit any lien to be created over it or any part of it;
- (b) ensure that the Equipment is used in a skilful and proper manner and in accordance with any operating instructions and ensure that the Equipment is operated and used by properly skilled and trained personnel;
- (c) ensure that the Equipment is used in compliance with all relevant legislation and/or regulations, including but not limited to the Factories Act 1961, the Health & Safety at Work Act 1974 etc., and with the benefit of all necessary permissions, licences or permits;
- (d) not make alteration to the Equipment and not remove any existing component nor attempt or make any repair or modification to the Equipment nor remove any sign or marking from the Equipment;
- (e) not hold or use the Equipment (nor permit others to do so) in a manner which will or may cause any provision of the insurance policies referred to in Condition 11 to be invalidated;
- (f) take proper care of the Equipment and ensure that it is safely, suitably and properly stored in a suitable environment; and
- (g) inform in writing any person to whom a debenture or charge over any part of the Customer’s assets is to be granted that the Equipment is not the property of the Customer.
4.10 The Customer will not, without prior consent of the Company in writing, which consent may be withheld at the Company’s absolute discretion, allow the Equipment to be removed outside the United Kingdom or to be used in any abnormal or hazardous assignment.
4.11 Any employee or agent (including a Technician) of the Company that visits premises not occupied by the Company at the request of the Customer or sets up, uses, demonstrates or dismantles any of the Equipment is, at all times, under the supervision of the Customer and the Customer will owe a duty of care to all persons in relation thereto. The Customer shall ensure that there is a safe working environment in such circumstances and that all statutory and other obligations of all kinds are adhered to, and that any such employee or agent of the Company is treated in the same manner as an employee of the Customer (if applicable) in this regard.
4.12 Where the Company arranges for a person (including a Technician) to provide any Services to the Customer, notwithstanding that they may be agents of the Company, such persons performing the Services will be doing so for the benefit of and under the instructions, direction and control of the Customer. Accordingly, it is deemed reasonable that the Customer owes a duty of care to such person and shall be solely responsible and liable for any instruction, guidance and/or advice given by the Customer to any such person and for any damage which occurs as a result of such persons following the Customer’s instructions, guidance and/or advice. The Customer shall ensure that such persons are treated in the same manner as an employee of the Customer (if applicable) in this regard.
4.13 The Company has a right to insist only those persons who have received Company training or specific supplied Technicians operate, move, or service any Equipment supplied by the Company for hire.
4.14 Notwithstanding and without prejudice to the above Conditions, any Company supplied Technicians or persons performing a Service are within their right to take any decision and action they deem necessary to ensure a safe operation of the Equipment and prevent any damage to the Equipment, related film or location equipment and sets or other persons.
4.15 As a condition of the hire of Equipment, the Customer hereby agrees that if any part of any filmed project is photographed primarily using the Company’s Equipment (“Film”), then the Customer shall ensure that the Company is fully credited in all media in which such Film is distributed, exhibited or otherwise exploited, including without limitation, negative film stock and all forms of digital media.
4.16 The Customer shall use its reasonable efforts to ensure that all third party distributor(s) of the Film comply with the Customer’s obligation to give the Company credit in accordance with Condition 4.15. If the Film is produced for television, the Customer shall be relieved of the said credit obligation if the Film does not accord any technical credits. If any such technical credits are given (in all media including but not limited to television or movies) and the Company’s Equipment is used in tandem with the Technician providing Services, the Customer will ensure that the Company will be given full credit for supplying such Technician and Equipment accordingly.
4.17 To the extent that any Equipment hired in accordance with the Contract incorporates any proprietary software (“Software”), the Customer shall be granted a limited, non-transferable, non-exclusive royalty-free licence to use such Software to the extent strictly necessary to use the Equipment in accordance with the terms of the Contract for the Hire Period only. The Customer acknowledges that all Intellectual Property Rights in the Software belong and shall belong to the Company and the Customer shall have no rights in or to the Software other than the right to use it in accordance with these Conditions. The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.
5. SALE OF GOODS CONDITIONS
5.1 The provisions of this Condition 5 shall apply to any and all Contracts between Customer and the Company for the sale of Goods and shall not apply to any Contracts between Customer and the Company for the hire/rental of Equipment or provision of Services.
5.2 Each order for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods subject to these Conditions and shall not be deemed to be accepted by the Company until a written acknowledgement of order on the same terms is issued by the Company, or (if earlier) the Company delivers the Goods to the Customer.
5.3 The Goods supplied are warranted to accord with their description and specification as described in the Quotation or other Contract document and no warranty is given as regards their suitability for any particular use or purpose which shall be entirely within the Customer’s control.
5.4 Where the Company is not the manufacturer of the Goods, the Company will use reasonable endeavours to (but will not be obliged to) transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
5.5 Any liability of the Company for non-delivery of Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Charge against any invoice raised for such Goods.
5.6 Time shall not be of the essence in relation to Goods delivery dates; and the risk of Goods supplied shall pass when the Goods leave the Premises which is agreed to be the time of delivery of the Goods.
5.7 Subject to the provisions of these Conditions and to the extent there set out, the Company warrants that Goods manufactured or adapted by it shall, on the date of delivery described in Condition 5.6, conform to their said description or specification in the Quotation and materially function and operate under normal use complying with the Company’s guidelines (if any) in the manner described in their description in the Quotation for twelve (12) months from the said delivery date for the Goods. Should any defect develop in the Goods within the said periods the Company will repair or at its option replace the defective Goods or the defective part thereof free of charge PROVIDED ALWAYS THAT:
- (a) the Goods have not been subject to abnormal use, nor for use under abnormal conditions, nor beyond their capacity as rated and recommended by the Company;
- (b) the defect has not been caused or contributed to by reason of the faulty installation or operation of the Goods by any person other than a duly authorised representative of the Company;
- (c) as soon as possible after the defect has become apparent, the Customer shall have notified that defect to the Company, quoting the serial number of the Goods, if any, and the date of purchase;
- (d) where the design of the Goods of the type in question has been altered since the Goods were delivered as described in Condition 5.6, the Company may, at the Company’s option, supply suitable alternative Goods of a new design;
- (e) the Customer, at its own expense and risk, shall suitably and adequately pack the Goods and return them at carrier’s “risk” rates to the Company and shall meet all other Company incidental expenses howsoever incurred relating thereto. In cases where it would not be practical for the Customer to return Goods to the Company and a visit is required from the Company’s engineer to inspect and/or repair the Goods, the Customer shall be liable to the Company to pay for (in advance, if required by the Company) all the costs of travel and incidental expenses incurred for visits outside of the Greater London area and overseas;
- (f) the decision of the Company is final as to whether or not a defect is due to faulty workmanship or material and if in the opinion of the Company the Goods were, when delivered in accordance with Condition 5.6, in a satisfactory condition or, if they are defective, then defective only as a result of accident, neglect, alteration, misuse or wear and tear since such delivery then the Customer shall, if required by the Company, pay a reasonable charge for the examination of the Goods by the Company and the cost of returning the Goods to the Customer; and
- (g) the Company shall not be liable for any cost of stripping or reassembling any equipment into which any Goods may have been fitted by the Customer after the said delivery date.
5.8 Notwithstanding delivery having been made, the title in the Goods shall not pass to the Customer until:-
- (a) the Customer has paid all the Charge plus VAT in full; and
- (b) no other sums whatever shall be due from the Customer to the Company.
5.9 Until title in the Goods passes to the Customer in accordance with Condition 5.8 the Customer shall hold the Goods and each of them on a fiduciary basis as bailee for the Company and shall safely and securely store the Goods at no cost to the Company separately from all other goods in its possession and mark them in such a way that they are clearly identified as the Company’s property.
5.10 Notwithstanding that the Goods (or any of them) remain owned by the Company, the Customer may sell or use the Goods in the ordinary course of the Customer’s business at full market value for the account and benefit of the Company. It is agreed that a sale by an administrator or liquidator of the Customer as part of or in connection with the sale of the assets or part of the assets of the Customer is not in the ordinary course of the Customer’s business. Any such sale or dealing shall be a sale or use of the Company’s property by the Customer on the Customer’s own behalf and the Customer shall deal as principal when making such sales or dealings. The entire proceeds of any sale or otherwise of the Goods shall be held in trust for the Company and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all times identified as the Company’s money.
5.11 The Company shall be entitled to recover the Charges (plus VAT) notwithstanding that the title in any of the Goods has not passed from the Company.
5.12 Until such time as the title in the Goods passes from the Company, the Customer shall upon request deliver up to the Company such of the Goods as have not ceased to be in existence or re-sold. If the Customer fails to do so the Company is authorised by the Customer to enter whenever the Company chooses upon premises owned, occupied or controlled by the Customer where the Goods are situated and re-possess the Goods, to which the Customer will not object. On the making of such a request the rights of the Customer under this Condition shall cease.
5.13 The Customer shall not pledge or in any way charge by way of any security for any indebtedness any of the Goods which are the property of the Company. Without prejudice to the other rights of the Company, if the Customer does so then all sums whatever owing by the Customer to the Company shall forthwith become due and payable.
5.14 The Customer shall insure and keep insured the Goods to the full value of the Charge against “all risks” to the reasonable satisfaction of the Company until the date that title in the Goods passes from the Company, and shall whenever requested by the Company produce a copy of the policy of insurance in accordance with Condition 11.1(a). Without prejudice to the other rights of the Company, if the Customer fails to do so all sums whatever owing by the Customer to the Company shall forthwith become due and payable.
5.15 Any liability of the Company for non-delivery of the Goods shall be limited to delivering them within a reasonable time or issuing a credit note at the pro rata Charge against any invoice raised for such Goods.
5.16 To the extent that any Goods purchased in accordance with the Contract incorporate any Software, the Customer shall be granted a limited, non-transferable, non-exclusive royalty-free licence to use such Software to the extent strictly necessary to use such Goods in accordance with the terms of the Contract for the full period of copyright of the Software. The Customer acknowledges that all Intellectual Property Rights in the Software belong and shall belong to the Company and the Customer shall have no rights in or to the Software other than the right to use it in accordance with these Conditions. The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.
6. PROVISION OF SERVICES
6.1 The provisions of this Condition 6 shall apply to any Contract between the Company and the Customer for the provision of Services by the Company and shall not apply to any Contracts between Customer and the Company for the hire/rental of Equipment or sale of Goods.
6.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified by the Company, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
6.3 The Services shall be provided as are described in the Contract and not beyond such scope thereof.
6.4 The Company shall have the right to make any changes to the Services which it considers reasonably necessary in order to comply with any applicable law or safety requirement or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer thereof in any such event.
6.5 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
6.6 If any agent or employee of the Company (including but not limited to a Technician) provides any Services at premises other than that of the Company he or she does so under the direction and supervision of the Customer and the Company will not be liable for any loss or damage occasioned by such servant or agent of the Customer or any third party howsoever such loss or damage has been caused.
7. GENERAL PROVISIONS APPLYING TO HIRE OF EQUIPMENT, SUPPLY OF GOODS AND PROVISION OF SERVICES
7.1 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent as is permitted by law, excluded from the Contract and no other warranties other than those in Conditions 5.3, 5.7, 6.3 and 6.5 are given, and the Customer agrees that this is reasonable bearing in mind all the circumstances of the subject matter of the Contract.
7.2 Subject to Condition 7.4 and without prejudice to any obligation the Company may have to repair or replace any Goods or Equipment supplied under the Contract, the total aggregate liability for the Company arising out of or in connection with the Contract (howsoever caused or arising) including for property damage shall not exceed:
- (a) in the case where the subject matter of the Contract is the hire of Equipment, one half of the Charge for the Hire Period as described in the Quotation;
- (b) in the case where the subject matter of the Contract is the supply of Goods by the Company, the lesser of the cost of repair of the Goods in question, the replacement of the Goods in question or the Charges for the Goods described in the Quotation; or
- (c) in the case where the subject matter of the Contract is the provision of Services, the lesser of the total Charges paid or the Charges payable under the Contract as described in the Quotation.
7.3 Notwithstanding any other provision of the Contract, but subject to Condition 7.4, it is agreed that the Company, its officers, employees and agents shall not be liable to the Customer and its officers, employees and agents (including Company’s breach of the Contract, breach of statutory duty or negligence) for any indirect or consequential loss or damage howsoever caused which may arise from the use of any Equipment supplied, used, installed or erected by the Company or from any failure or defect in the Goods, or from any Services provided by the Company or a Technician providing those Services.
7.4 Nothing in the Contract shall limit or exclude any party’s liability for fraud or for personal injury or death caused by negligence, or to the extent otherwise not permitted by law.
7.5 The Customer will indemnify the Company and its employees on demand from and against all claims, demands, costs, actions, expenses (including professional advisors’ fees) or proceedings made against or sustained by them by any third party (to the extent caused through its own act or omission) arising out of or in connection with the Customer’s failure to comply with any of the provisions of the Contract.
7.6 The Customer shall also indemnify the Company and its employees on demand in respect of all claims by any person whatsoever for any personal injury, death or damage to personal property caused by or in connection with or arising out of the storage, transit, loading, setting up, use or dismantling of the Equipment during the Hire Period by the Technician or anyone who is not a Company employee save for any matter arising directly as a result of the Company’s negligence or breach of Contract.
8.1 The Charges for the hire of Equipment, supply of Goods or provision of Services shall be (as applicable):
- (a) that set out in the Quotation or, failing that;
- (b) that, set out in a confirmation of order by the Company;
- (c) that referred to in Conditions 8.6 and 8.7; or
- (d) as notified by the Company to the Customer.
8.2 Subject to Condition 8.3 below, payment by the Customer of all Charges relating to the hire of Equipment and/or supply of Goods or Services shall be made in advance. All such Charges must be paid prior to delivery or collection and no Equipment will be released, no Goods supplied and no Services provided until payment in full has been received.
8.3 Any Customer wishing to open a credit account with the Company must submit a completed credit account application form for consideration by the Company together with any documents requested by the Company. The Company may give credit at any time entirely at its discretion and may refuse or withdraw credit without specifying any reason. If the Company has approved the Customer’s credit account application then, unless otherwise agreed in writing between the parties, the Company may invoice the Customer for each order upon or at any time following collection or delivery of any Goods or Equipment or supply of any Services in accordance with the Contract. Payment of all Charges by the Customer must be made within 30 days of the date of any invoice issued to the Customer by the Company (the “Due Date”). Such payment shall be made in full without deduction by way of set off, counterclaim or otherwise. The time for payment shall be of the essence.
8.4 If the Customer fails to make payment on or before the Due Date then this shall constitute a material breach of the Contract and, without prejudice to any other right or remedy, the Company will be entitled to, as applicable:-
- (a) charge and the Customer interest on the amount unpaid at a rate of 4% per annum over Barclays base rate from time to time or the rate specified in the Late Payment of Commercial Debt (Interest) Act 1998, as amended, whichever is the higher; and
- (b) claim and be paid reasonable compensation for debt recovery costs as specified in the Late Payment of Commercial Debt Regulations 2002 (or any amendment thereof) on each invoice; and
- (c) terminate the Contract for hire of Equipment or any Contract to provide further or remaining Services with the Customer; and
- (d) withdraw any credit facilities even if previously granted such that all sums invoiced to the Company shall become immediately payable.
8.5 Any payment due to the Company in accordance with this Condition 8 shall not, in any circumstances, be dependent upon payment to the Customer from any third party.
8.6 Overtime and out of hours rates for Technicians on feature films is based on prior written agreement between the Company and the Customer. Where no such prior agreement has been made the Company will charge the applicable rates as set out in the Advertising Producers Association (“APA”) recommended terms. The Company will be entitled to Charge for any Technicians working on commercials or any other productions at the rates described in the APA “Recommended Terms For Engaging Crew On The Production Of Commercials”.
8.7 Where Technicians service hired or sold Equipment or respond to phone calls, emails, text messages and/or facsimiles from the Customer, then such matters will be charged by the Company to the Customer at the Company’s then standard servicing rates, as set by the Company’s servicing department from time to time and which are available from the Company on request.
8.8 All Charges invoiced to and payable by the Customer under the Contract are exclusive of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the hire of Equipment, supply of Goods or provision of Services at the same time as payment is due for such matters.
9. DELIVERY & RISK RELATING TO HIRE AND SUPPLY OF EQUIPMENT AND GOODS
9.1 Any dates quoted for the delivery of the Equipment or the Goods are approximate only and the Company shall not be liable for any delay in delivery or provision howsoever caused and, as stated, time shall not be of the essence in relation to delivery.
9.2 The Customer will inspect the Equipment and/or the Goods upon delivery and shall notify the Company within 3 working days after delivery in writing of any shortfall, missing items or defects capable of being ascertained on inspection. If the Customer does not notify the Company within such time period, it is agreed that it shall be conclusively presumed that the Goods and the Equipment are complete, comply with their description and, so far as it is able to be ascertained on inspection, in good working order.
9.3 All Equipment and Goods shall, immediately upon leaving the Company’s (or as the case may be a third party’s) premises and thereafter, be the responsibility of and at the risk of the Customer.
9.4 Unless otherwise agreed in writing by the Company, delivery of the Equipment and Goods shall take place at the Premises and the Customer will take delivery of the same within 5 days of the Company giving it notice that the Equipment and Goods are ready for delivery, after which delivery shall be deemed to have occurred.
9.5 Where delivery to the Customer’s premises is effected by a third party, delivery for these purposes shall be deemed to have occurred when the Equipment and Goods leave the Premises or the premises of the third party supplier.
10. SET UP AND FITNESS FOR PURPOSE
10.1 The Customer must satisfy itself that the Goods and/or Equipment are fit for the Customer’s purpose and the Company gives no warranty as to the fitness of the Goods and/or the Equipment for any particular purpose.
10.2 The Company will make available to the Customer facilities at the Premises for the Customer to inspect the Goods and/or Equipment and to set up the Goods and/or Equipment for the Customer’s own use. The Customer relies entirely on its own skill and knowledge in relation to the use and set up of the Goods and/or Equipment.
10.3 Any document(s), such as a ‘Release and Waiver of Liability Agreement’ executed by the Customer (or the Technician if they are providing some or all of the Services) in relation to the use and set up of the Goods and/or Equipment shall be incorporated into the Contract and may provide for responsibilities and duties of both the Customer and the Technician which shall apply.
10.4 The Equipment and/or Goods are the responsibility of and are at the risk of the Customer during the inspection, set-up, use, testing or dismantling notwithstanding that such inspection, set-up, use, dismantling or testing is taking place on the Premises, and the Customer must insure the Goods and/or Equipment under its own policy of insurance when such inspection, set-up, use, dismantling or testing is taking place.
10.5 Any assistance given by the Company, its employees or agents (including Technicians) at the Customer’s request and under the Customer’s direction during the inspection, set-up, use, dismantling or testing processes shall be under the supervision, instruction and control of the Customer and accordingly the Company shall not be responsible for any such assistance.
10.6 Any advice or recommendations given by the Company, its employees or agents (including Technicians) to the Customer, its employees or agents as to the inspection, set-up, use, dismantling or testing of the Goods and/or Equipment which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk and accordingly the Company shall not be responsible for any such advice or recommendation which is not so confirmed.
11.1 The Customer shall effect and maintain the following insurances throughout the Hire Period:
- (a) an “all risks ” insurance policy on all items of Equipment hired under the Contract for their full replacement value (including without limitation cover against loss, theft or damage to the Equipment) and the hire Charge;
- (b) a third party liability insurance policy covering the liability of the Customer for death or personal injury, or for damage to or loss of property arising directly or indirectly out of the Customer’s use, control or possession of any Equipment hired under the Contract which shall note the Company as an additional insured thereon; and the Customer shall at the commencement of the Hire Period give notice to the insurer thereof of the Company’s interest in such policy.
11.2 The policies in respect of such insurances and evidence of payment of their premiums shall, when requested by the Company, be produced to the Company by the Customer for inspection and in any event shall be produced to the Company each year on the anniversary of the initial granting of any credit for purchase or of any Hire Period anniversary. The Customer will notify the Company of any change in relation to such policy.
11.3 The Customer shall give written notice to the Company of any occurrence which will or may give rise to a claim being made on any insurance pursuant to this Condition 10 11 and such notice shall be given within twenty four hours of the occurrence being first known to the Customer or as soon as practicable.
11.4 The Customer shall, at its own cost, assist the Company in securing the settlement of any claim and the payment to the Company of the value of such claim so far as it relates to the Equipment or to the liability of the Company to any third party.
12. DATA PROTECTION
12.1 The parties agree and acknowledge that any personal data of the Customer collected by the Company shall only be used:
- (a) to the extent necessary to perform the Company’s obligations under the Contract; and
13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Conditions 13.2 and 13.3.
13.2 Each party may disclose the other party’s confidential information:
- (a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Condition 13; and
- (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 The Company may disclose the Customer’s confidential information to other members of the group of companies to which it belongs for the purposes of carrying out its obligations under the Contract.
13.4 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
14. TERMINATION & REPOSSESSION
14.1 Either party shall be entitled to immediately terminate the Contract on giving written notice to the other if:
- (a) the other party commits any material breach of the Contract and, in the case of such a breach which is capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied (for the avoidance of doubt any late payment or failure to pay by the Customer any Charges shall be a material breach); or
- (b) that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or partnership) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or
- (c) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of that other party; or
- (d) the other party ceases, or threatens to cease, to carry on business.
14.2 The Company shall be entitled to terminate the Contract upon written notice to the Customer if, in the Company’s reasonable belief, the Customer has used any Equipment hired in accordance with these Conditions for any illegal purpose or has failed to comply with all applicable local laws and/or regulations in relation to the Contract (including without limitation any laws and/or regulations concerning the import or export of goods).
14.3 On termination of the Contract for any reason the Customer shall pay to the Company all amounts then due and any other Charges that would have been payable under the Contract had it been fully performed by the Customer.
15.1 Any notice to be given in accordance with this Contract shall be deemed to be properly given if delivered by hand or sent by prepaid post or email or facsimile to the party concerned at the address or email address or facsimile number as set out on the Quotation or to such other address, email or facsimile number as may be communicated from time to time in writing from the recipient of the notice to the sender of the notice. Notices sent by prepaid post shall be deemed to have been received three working days after the date of posting. Notices delivered by hand shall be deemed to have been delivered upon receipt. Notices sent by email or facsimile shall be deemed to have been received if sent before 4pm on any working day on that day and if sent after 4pm on any working day on the first working day following the date of sending as the case may be and in both cases provided the sender has retained a successful transmission receipt.
16. GOVERNING LAW AND JURISDICTION
16.1 This Contract shall be governed and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
17.1 Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding and have effect when agreed in writing and signed by the Company.
17.2 The Contract is the entire agreement between the parties and supersedes any previous agreement in relation to its subject matter. The Customer acknowledges and agrees that in entering into this Contract it does not rely on and shall have no remedy in respect of any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Contract or not) other than as expressly set out in or incorporated into the Contract and its only remedy for breach of this Contract shall be for breach of contract under the terms of this Contract.
17.3 The Company shall not be liable for any delay in performing or any failure to perform any of its obligations under this Contract caused directly or indirectly by any event beyond its reasonable control.
17.4 Neither party shall without the prior written consent of the other party assign, transfer, charge or deal in any other manner with this Contract or its rights under it or part of it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Contract.
17.5 If any part of the Contract becomes invalid, illegal or unenforceable it shall be severed from the Contract and the remainder of the Contract shall remain in full force and effect.
17.6 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that act.