1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Charges: the Hire Charge and/or the price for the Goods and/or the price for the Services payable to the Company by the Customer.
Commencement Date: the date on which the Hire Term begins, being the date stipulated in the Company’s acknowledgment of order issued pursuant to Condition 3.1, or such other date as may subsequently be agreed in writing with the Company.
Company: Love High Speed Limited.
Conditions: these Terms and Conditions of Supply.
Contract: any contract between the Company and the Customer for the supply of Equipment and/or Goods and/or Services, incorporating these conditions.
Customer: the person, firm or company who hires Equipment and/or who purchases Goods and/or Services from the Company.
Goods: any goods agreed in the Contract to be sold or loaned to the Customer by the Company (including any part or parts of them), including but not limited to any camera and computer equipment and related goods.
Hire Charge: the price for (the hire of) the Equipment, as applicable from time to time, calculated on a daily basis and payable throughout the Hire Term.
Equipment: any goods which the Company has agreed in the Contract to hire to the Customer (including any part or parts of them), including but not limited to any camera and computer equipment and related goods.
Hire Term: the period between the Commencement Date and the Termination Date during which the Equipment is to be held by the Customer in return for payment of the Hire Charge to the Company (with the minimum Hire Term being for a period of 24 hours, from midnight to midnight), subject to earlier termination of the Contract under Condition 9.
Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered.
Personnel: those employees of the Company and/or self-employed contractors (if any) as are stipulated in the Company’s acknowledgment of order to be provided to the Customer to perform the Services, subject to these Conditions.
Services: any and all services to be provided by the Company pursuant to the Contract (i) in relation to the Equipment and/or the Goods; or (ii) as standalone services, including the conversion of file-based images from one format to another.
Site: the premises and any part of those premises at which the Services are to be performed (unless the Company stipulates that any standalone services shall be performed at the Company’s place of business) and where the Equipment and/or Goods are to be delivered, if the Company agrees in writing that delivery of the Equipment and/or Goods shall take place other than at the Company’s place of business. The Site shall be deemed to be the Customer’s premises, unless otherwise agreed in writing by the Company.
Termination Date: the date on which the Hire Term ends, being the date stipulated in the Company’s acknowledgment of order issued pursuant to Condition 3.1, or such other date as may subsequently be agreed in writing with the Company, subject always to earlier termination of the Contract under Condition 9.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these Conditions.
2. APPLICATION OF CONDITIONS:
2.1 All dealings between the Customer and the company shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document and including any term implied by law, (so far as is possible), trade, custom, practice or course of dealing.
2.2 Any representations about any Equipment and/or Goods and/or Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company.
3. CONTRACT FORMATION:
3.1 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgment of order to the Customer. Any quotation is valid for a period of 7 days only from its date, provided that the Company has not previously withdrawn it. Any discount applied by the Company (if any) is only valid for a period of 24 hours from the date of the quotation.
3.2 The quantity and description of the Equipment and/or Goods and/or Services shall be as stipulated in the Company’s acknowledgment of order issued pursuant to Condition 3.1.
3.3 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Equipment, Goods and Services described in them. They shall not form part of the Contract and this is not a sale by sample.
3.4 The Customer shall ensure that the terms of its order and any applicable specification are complete, accurate and timely submitted.
3.5 If any Equipment and/or Goods are to be manufactured, ordered, designed, built, configured, altered, adapted, or subjected to any process by or on behalf of the Company for the Customer and/or any Services are to be performed by the Company, in each case in accordance with any instructions, specification or design submitted by the Customer, the Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by, the Company, in settlement of any claim for infringement of any patent, copyright, design, trade mark or any other intellectual property right of any other person resulting from the Company’s use of any instructions, specification or design so submitted. For the avoidance of doubt, the obligations placed on the Customer by this Condition 3.5 shall apply equally in respect of any content which is supplied, procured, produced, reproduced or otherwise used by or on behalf of the Customer and embodied in any material created by the Company’s cameras.
3.6 The Customer shall be solely responsible for ensuring the suitability or fitness of any Equipment and/or Goods for any particular purpose and for ascertaining its compatibility or inter-operability with any other goods. The Customer shall rely entirely on its own skill and knowledge in relation to the use and set up of the Equipment and/or Goods.
3.7 Without prejudice to the provisions of Condition 3.1, if the Customer wishes to cancel or vary any order for (i) Goods and/or (ii) Services (provided that the Services are unrelated to the hire of any Equipment, in which case the provisions of Condition 3.8 shall apply) this shall be subject to acceptance by the Company and the Customer must pay any additional costs, charges or expenses associated with cancelling or changing the order, including those incurred in fulfilling the changed order.
3.8 No order for Equipment (or for any Services related to the hire of any Equipment) may be cancelled or varied by the Customer at any time prior to the commencement of the Hire Period or thereafter and any attempt to cancel or vary any such order shall render the Customer liable to pay the Company 100% of the invoice total.
3.9 In the event that the Customer requires the Company to provide Personnel, the Company shall (subject always to the requirements of Condition 3.1) provide the Personnel to the Customer for such period as shall be stipulated in the Company’s acknowledgment of order. This Condition 3.9 shall be subject to the provisions of Condition 3.8.
3.10 All costs and charges for each member of Personnel supplied will be fully reimbursed by the Customer throughout the period for which that member of Personnel is retained by the Customer. The net costs and charges of each member of Personnel per day (or part day) including travel time will be set against their names in the Company’s acknowledgment of order and are to be paid directly to the Company by the Customer. This Condition 3.11 shall be subject to the provisions of Condition 4.
4. CHARGES AND PAYMENT:
4.1 The Charges shall be as set out in the Company’s acknowledgment of the Customer’s order issued pursuant to Condition 3.1.
4.2 The Charges shall be exclusive of value added tax.
4.3 In addition to paying the Charges to the Company pursuant to Condition 4.1, the Customer shall pay the Company any additional sums which are required as a result of the Customer’s inadequate, inaccurate or incomplete instructions or for any other cause attributable to the Customer, including any delay in returning the Equipment to the Company.
4.4 Unless otherwise agreed in writing by the Company, any variation to the Goods and/or Services requested by the Customer which is approved by the Company pursuant to the provisions of Condition 3.7 shall entitle the Company to increase the Charges.
4.5 The Company shall be entitled to vary the Hire Charge from time to time by giving not less than 12 hours’ written notice to the Customer.
4.6 An additional Hire Charge shall be payable if the Company and the Customer each agree to extend the Hire Term beyond the Termination Date. In any event, any retention of the Equipment beyond the Termination Date by or on behalf of the Customer shall require the Customer to continue to pay the Hire Charge for the entire duration of the period for which the Equipment is so retained, without limiting any other right or remedy available to the Company in such circumstances.
4.7 Unless otherwise agreed by the Company in writing, the Charges shall be payable within 28 days of the relevant invoice therefor. The Company reserves the right to request full payment the Charges prior to the delivery of any Equipment and/or Goods, or the performance of any Services.
4.8 If any payment is not made by the due date, the Company may, without prejudice to any other right or remedy, (i) cancel the Contract, or cancel any discount (if any) offered to the Customer; or (ii) suspend the delivery of any Equipment and/or Goods; or (iii) suspend the performance of any Services.
4.9 Time for payment shall be of the essence.
4.10 No payment shall be deemed to have been received until the Company has received cleared funds. In the event that the Customer tenders payment by cheque and said cheque is returned unpaid to the Company, the Customer shall reimburse the Company for any bank charges incurred by the Company.
4.11 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
4.12 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
4.13 The Company reserves the right to charge interest at the rate of 5% per annum above Barclays Bank plc’s base lending rate from time to time on all amounts remaining unpaid after the due date for payment and such interest will accrue on a daily basis from the due date for payment until the date when payment is actually made and shall accrue after as well as before any judgment.
4.14 The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 together with late payment charges as set out in the Act. Without limitation, the Customer shall reimburse the Company for any and all costs incurred by the Company in recovering payment pursuant to this Condition 4.
4.15 The Company shall have a general lien upon all materials now or at any time in its possession belonging to the Customer (including any material created by the Company’s cameras for or on behalf of the Customer) for any sum for the time being due to the Company. The Company further reserves the right to prevent the Customer from using or allowing any other party to use any material created by the Company’s cameras until the Company has received payment of the Charges in full.
5. DELIVERY AND PERFORMANCE:
5.1 Unless otherwise agreed in writing by the Company, delivery of the Equipment and/or Goods shall take place at the Company’s place of business. The Customer shall be responsible for arranging for the carriage of the Equipment and/or Goods to the destination address. The cost of packaging together with all transportation and carriage costs (including, without limitation, the cost of all related insurance coverage and the cost of loading and unloading the Equipment and/or Goods) shall be borne by the Customer. Unless the Company stipulates that any standalone services shall be performed at the Company’s place of business, the Services shall be performed at the Site.
5.2 Any dates specified by the Company for (i) delivery of the Equipment and/or Goods and/or (ii) performance of the Services are intended to be estimates and time for delivery or performance shall not be made of the essence by notice. If no dates are so specified, delivery and/or performance shall be within a reasonable time. Should expedited delivery and/or performance be agreed, the Company reserves the right to levy an extra delivery and/or performance charge.
5.3 Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Equipment and/or Goods and/or in the performance of the Services (even if caused by the Company's negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
5.4 Equipment is hired subject to it being available for hire to the Customer at the time required by the Customer. The Company will not be liable for any loss suffered by the Customer as a result of the Equipment being unavailable for hire where the Equipment is unavailable due to circumstances beyond the Company’s control.
5.5 If for any reason the Customer fails to take delivery of any of the Equipment and/or Goods:
(a) the Equipment and/or Goods shall be deemed to have been delivered; and
(b) risk in the Equipment and/or Goods shall pass to the Customer (including for loss or damage caused by the Company's negligence);
(c) the Company may store the Equipment and/or Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance);or
(d) hire and/or sell the Equipment and/or Goods at the best price readily obtainable and (after deducting any reasonable costs and expenses in connection with the storage and expedited hire/sale of the Equipment and/or Goods), charge the Customer for any shortfall below the Charges for the Equipment and/or Goods.
5.6 The Company may deliver the Equipment and/or Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
5.7 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
5.8 The Company shall not be liable for any non-delivery of Equipment and/or Goods (even if caused by the Company's negligence) unless the Customer gives written notice to the Company of the non-delivery within 3 days of the date when the Equipment and/or Goods would in the ordinary course of events have been received.
5.9 Any liability of the Company for non-delivery of the Equipment and/or Goods shall be limited to replacing the Equipment and/or Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Equipment and/or Goods.
5.10 The Customer shall ensure that all licences, consents and permits which are or which may be required in connection with the use of the Equipment and/or Goods are duly and timely obtained and maintained, in each case at the Customer’s cost.
5.11 The Company reserves the right to revise the Charges if any consent required to be sought by the Customer under Condition 5.10 imposes conditions which involve additional expense.
5.12 Where the Company is to provide Services to the Customer at the Site, the Customer shall, at the Customer’s cost:
(a) ensure, before the Services are due to commence, that the Site is fully prepared;
(b) allow sufficient access to and from the Site and procure sufficient unloading space, facilities and access to utilities to enable Personnel to undertake the Services;
(c) ensure the safety of any person present on the Site during the performance of the Services; and
(d) be solely responsible for reinstating the Site thereafter.
5.13 The Customer acknowledges that the Company bears no responsibility for the action or inaction of any member of Personnel supplied save to warrant that any work undertaken by Personnel shall be performed with reasonable skill and care, subject always to the provisions of Conditions 8.5-8.8. If any member of Personnel undertakes Services at the Site, that member of Personnel shall be deemed to be working under the direction and supervision of the Customer and in so doing, the Company will not be liable for any loss or damage occasioned by such member of Personnel to the Customer or any third party howsoever such loss or damage has been caused.
5.14 Without limiting the generality of Condition 5.13, where the Company offers training in relation to the use of the Equipment and/or Goods, the Company shall not be liable for anything directly or indirectly attributable to any action or inaction of Personnel in relation to any such training and the Company reserves the right to cancel or change any agreed time or date for training and to charge the Customer for training.
5.15 Where the Company undertakes any work for the Customer without charge for one or more days for testing purposes, this shall be on the condition that the Customer books the Company to assist the Customer with the work for which testing is required and if the Customer does not make such a booking with the Company, the Company shall be entitled to charge the Customer for any and all work undertaken for testing purposes.
5.16 The Customer shall not, without the prior written consent of the Company, whether acting on the Customer’s own account, on behalf of, or with any other person (including any person which the Customer directs to act on its behalf), at any time from the first date of performance of the Services to the expiry of 6 months after the last date of performance of the Services, solicit or entice away from the Company or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any member of Personnel who is, or has been, engaged in the provision of the Services.
5.17 Any consent given by the Company in accordance with Condition 5.16 shall be subject to the Customer paying to the Company a sum equivalent to 15 % of the then current annual remuneration of the relevant member of Personnel.
6. CARE OF THE EQUIPMENT:
6.1 The Customer hereby agrees that with respect to any Equipment, it shall:
(a) take reasonable care of the Equipment and use it only for its intended and proper purpose in a safe, correct, skilful and proper manner and in accordance with any and all operating instructions and directions given by the Company and ensure that the Equipment is operated and used by properly skilled and trained personnel;
(b) take adequate and proper measures to protect the Equipment from damage and other risks, protect the Equipment from the elements and take all reasonable precautions for its security and safety;
(c) insure the Equipment on such terms as the Company may require, the proceeds of such insurance to be held by the Customer in trust for the Company and to be paid to the Company on demand;
(d) produce the policy in respect of any insurance required by the Company and evidence of payment of premiums upon demand and promptly notify the Company of any change in relation to such policy;
(e) not do or omit to do anything which the Customer has been notified may invalidate any policy of insurance related to the Equipment and give written notice to the Company of any occurrence which will or may give rise to a claim being made on any insurance and such notice shall be given within 4 hours of the occurrence being first known to the Customer;
(f) 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;
(g) permit the Company at all reasonable times and upon reasonable notice to inspect, test, adjust, repair or replace the Equipment;
(h) notify the Company immediately, following any loss of, damage or deterioration to, and/or breakdown of, the Equipment; and
(i) protect the Equipment against distress, execution or seizure and keep the Equipment at all times under its control;
(j) carry out regular reviews of any digital content or data captured by the Equipment by a suitably qualified technician;
(k) ensure that any content or data recorded by the Equipment is kept safe;
(l) remove all film, visual or audio visual content or other data from the Equipment prior to its return to the Company; and
(m) be responsible for and shall fully reimburse the Company for any and all expenses, costs, losses (including loss of Hire Charge up to a maximum period of 13 weeks) and/or damage incurred by or against the Company arising from any theft of, loss of, destruction of, damage or deterioration (fair wear and tear excepted) to, and/or breakdown of the Equipment.
6.2 The Customer hereby agrees that with respect to any Equipment, it shall not:
(a) attempt to repair, maintain, alter or interfere with the Equipment without the prior written consent of the Company;
(b) add to, modify, adapt or misuse the Equipment nor affix to, install thereon or insert therein any accessory, equipment or device incompatible with the proper use of the Equipment;
(c) use, nor continue to use any Equipment in an unsafe or unsatisfactory state or environment, nor where it has been damaged and will notify the Company immediately if the Equipment is involved in an accident resulting in damage to the Equipment, other property and/or injury to any person;
(d) remove from, nor cover up, alter or deface any labels, names or proprietary marks on the Equipment;
(e) affix any marking or labelling on the Equipment without the Company’s written consent;
(f) attempt to sell, hire, loan, assign, charge, pledge, or otherwise dispose of the Equipment or any interest therein, or permit any lien to be created over the Equipment or any part of it;
(g) remove the Equipment from the Site without the prior consent of the Company;
(h) deploy the Equipment in any abnormal or hazardous environment, nor transport the Equipment by air, without the prior consent of the Company.
6.3 The Customer shall be required to return the Equipment to the Company’s place of business on the Termination Date.
6.4 The Equipment must be returned to the Company in good order and condition (fair wear and tear excepted) and in a clean condition together with all insurance policies, licences and other documents.
6.5 If the Equipment is found by the Company to be in a damaged, unclean and/or defective state except where due to fair wear and tear, the Customer shall be liable to pay the Company for the cost of any repair and/or cleaning required to return the Equipment to a condition fit for re-hire and to continue to pay the Hire Charge until such repairs and/or cleaning have been completed, for a maximum period of 13 weeks.
6.6 Without limiting any of the provisions of this Condition 6, the Customer will incur additional costs and charges for any Equipment which is damaged beyond economic repair, up to and including the replacement cost of new Equipment at current market rates.
6.7 Any hard drives hired by the Company to the Customer shall be hired on a weekly basis and if the Customer fails to return to the Company any hard drive which is due for return at the end of the week for which the hard drive has been hired, the Company reserves the right to invoice the Customer for the purchase price of the hard drive, which invoice shall be immediately due and payable.
7. RISK AND TITLE:
7.1 Risk of damage to or loss of the Equipment and/or Goods shall pass to the Customer:
(a) in the case of Equipment and/or Goods to be delivered at the Company's place of business, at the time when the Company notifies the Customer that the Equipment and/or Goods are available for collection;
(b) in the case of Equipment and/or Goods to be delivered at the Site, at the time that the Equipment and/or Goods leave the Company’s place of business or the premises of the Company’s carrier.
7.2 Title to the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Customer on any account.
7.3 Title to the Equipment shall remain at all times with the Company. Risk of damage to or loss of the Equipment shall pass back from the Customer to the Company at the time of delivery of the Equipment to the Company’s place of business.
7.4 Until title to the Goods has passed to the Customer, the Customer shall: a) hold the Goods on a fiduciary basis as the Company's bailee; b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property; c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery and indemnify the Company against all loss or damage of whatsoever nature affecting the Goods; e) notify the Company immediately if it becomes subject to any of the events listed in Condition 7.5; f) not assign to any other person any rights arising from a sale of the Goods without the Company’s written consent (and then only subject to a set of terms and conditions containing a Risk and Title clause which is at least as onerous as this Condition 7); and g) give the Company such information relating to the Goods as the Company may require from time to time, but the Customer may resell the Goods in the ordinary course of its business, provided that it shall hold the entire proceeds of any such resale upon trust for the Company until the Goods have been paid for in full and shall keep all such trust monies in a separate bank account which shall not be overdrawn and in which such trust monies are not mingled with its own or any other monies. The Customer acknowledges and agrees that a sale by an administrator or liquidator 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.
7.5 The Customer's right to possession of the Goods shall terminate immediately if:
(a) the Customer has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
(b) the Customer suffers or allows any execution distress or diligence, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or a secured lender to the Customer takes any steps to obtain possession of the secured property or otherwise enforce its security; or
(c) the Customer ceases to trade, or threatens to cease to trade; or
(d) the Customer encumbers or in any way charges any of the Goods.
(a) the Customer is late in paying for the Goods; or
(b) the Customer is late in paying for any other goods or services supplied by the Company; or if
(c) before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Condition 7.5 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then:
without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, the Company may enter any premises of the Customer or of any third party where the Goods are stored or kept in order to recover them. The Customer shall not keep the Goods at any premises other than such premises as shall be specified in writing by the Customer to the Company prior to the dispatch of Goods to the Customer, or at any premises at which the Customer does not have the right to grant access to the Company.
7.7 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of the Goods has not passed from the Company.
7.8 Any Goods loaned by the Company to the Customer shall be loaned for a period of 7 days and if the Goods are not returned to the Company by the end of that 7 day period, the Company reserves the right to invoice the Customer for the purchase price of the Goods, which invoice shall be immediately due and payable.
7.9 On termination of the Contract, howsoever caused, the Company's (but not the Customer's) rights contained in this Condition 7 shall remain in effect.
8. WARRANTIES AND LIABILITY:
8.1 The Company shall, at the Company's option, repair or replace Equipment and/or Goods or refund the Charges paid for Equipment and/or Goods which are proved to the reasonable satisfaction of the Company to be damaged or defective due to faulty materials or workmanship at the time of delivery. The Company shall, at the Company's option, re-perform any Services which are proved to the reasonable satisfaction of the Company not to have been performed with reasonable skill and care, or shall refund the Charges paid for the Services. These obligations shall not apply:
(a) if the defect arises because the Customer has repaired, maintained, altered or interfered with any Equipment and/or Goods without the written consent of the Company; or
(b) if the Customer did not follow the instructions for the use of any Equipment and/or Goods; or
(c) if the Customer is in breach of any of its obligations in Condition 6, with respect to any Equipment; or
(d) if the Customer makes any further use of any Equipment and/or Goods which the Customer has alleged to be defective after giving notice of any such defect; or
(e) if the Customer alleges that the set up and/or adjustment of the Equipment and/or Goods was unsuitable, but the Customer failed to carry out its own appropriate tests using suitably qualified operatives before using the Equipment and/or Goods for filming or otherwise;
(f) if the Goods are comprised of film, tape or similar consumable items and the Customer alleges that the Goods had degenerated, but the Customer failed to test the Goods prior to use thereof;
(g) if the full price for the Equipment and/or Goods and/or Services has not been paid by the time for payment stipulated in Condition 4; or
(h) if the defect in the Equipment and/or Goods and/or deficiency in the Services is of a type specifically excluded by the Company by notice in writing.
8.2 The Company shall not be liable for a breach of any of the warranties in Condition 8.1 unless the Customer gives written notice of the defect or deficiency to the Company within 3 days of the time when the Customer discovers or ought to have discovered the defect or deficiency (within 24 hours, if any defect in Equipment and/or Goods is a result of damage in transit).
8.3 Except as set out in Condition 8.4 below, the provisions in Condition 8.1 constitute the Company's sole obligation to the Customer and are accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of any Equipment and/or Goods and/or Services and all such representations, conditions and warranties are excluded.
8.4 The Company does not exclude its liability to the Customer:
(a) for breach of the Company's obligations under section 12 of the Sale of Goods Act 1979;
(b) for personal injury or death arising as a result of the Company's negligence;
(c) under the conditions implied by section 2 of the Supply of Goods and Services Act 1982);
(d) under section 2(3) of the Consumer Protection Act 1987;
(e) for any matter for which it would be illegal for the Company to exclude or to attempt to exclude its liability; or
(f) for fraud or fraudulent misrepresentation.
8.5 Except as provided in Conditions 8.1 and 8.4, the Company shall be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss of or damage to equipment, data or data storage media, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, or loss of contracts and like loss) howsoever caused.
8.6 Except as provided in Conditions 8.1 and 8.4 and without limiting the generality of Condition 8.5, the Company shall incur no liability for:
(a) any loss, damage, costs, claims or expenses for lost production time, delay in shooting, the cost of re-shooting unusable footage or remedial or repair work on digital media;
(b) any loss or damage to film, visual, audio visual content or other data left in the Equipment on its return to the Company;
(c) any image corruption, artefacts or technical issues with any material produced by or any data handled by the Company; or
(d) any image, information, commentary, content or material which is directly or indirectly related to any Customer, or any project or production of any Customer or of any Customer’s client and which appears on any website or social media platform.
8.7 The Company hereby excludes to the fullest extent permissible at law all conditions, warranties and stipulations, express (other than those set out in these Conditions) or implied, statutory, customary or otherwise which but for such exclusion, would or might subsist in favour of the Customer.
8.8 Save as set out in Condition 8.4, the Company's total liability in contract, tort, (including negligence), breach of statutory duty, misrepresentation or otherwise shall be limited to repairing, replacing, re-performing or refunding the Charges paid for the Equipment and/or Goods and/or Services, as applicable.
8.9 No allowance will be made in relation to the Hire Charge for any non-use of the Equipment due to breakdown of the Equipment where the Company is able to repair or replace the Equipment pursuant to the provisions of Condition 8.1, but the Customer shall be responsible for all expenses, loss (including loss of Hire Charge up to a maximum of 13 weeks) and/or damage suffered by the Company arising from any breakdown of the Equipment due to the Customer’s negligence, misdirection and/or misuse of the Equipment.
8.10 The Customer shall hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, (including for injury to personal property caused by or in connection with or arising out of the storage, transit, loading or use of the Equipment during the continuance of the Hire Term) to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
9. TERMINATION AND REPOSSESSION:
9.1 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 any of these Conditions 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 sums due shall be a material breach); or
(b) any one or more of the events set forth in Condition 7.5 occurs in relation to the other party.
9.2 On termination, the Customer shall pay to the Company all costs and expenses due under the Contract.
9.3 Termination of the Contract shall be without prejudice to any accrued rights and remedies of either party.
9.4 On the Termination Date, or following termination of the Contract for whatever reason, the Customer shall forthwith return the Equipment to the Company’s place of business, subject to the provisions of Conditions 6.4 – 6.6.
9.5 If the Customer fails to return the Equipment on any date required under Condition 9.4, the Company may, without notice, retake possession of the Equipment and for this purpose shall be entitled without notice, to enter into any premises occupied or controlled by the Customer.
10. CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY RIGHTS AND CREDITS:
10.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Company and any other confidential information concerning the Goods, Equipment and Services or the Company's business which the Customer may obtain and the Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
10.2 If the Customer wishes the Company to sign a release form, or any Non-Disclosure or Confidentiality Agreement, the documentation must be received by the Company at least 7 days prior to the commencement of the project or production to which the documentation relates. The Company reserves the right to refuse to sign any such documentation or to require that the documentation be amended.
10.3 The Customer acknowledges the Company’s ownership of any and all Intellectual Property Rights in any Equipment and/or Goods and/or Services provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. Without limitation, the Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant of rights therein. The Customer further acknowledges that, without limitation, any and all Intellectual Property Rights developed by the Company in performing any Services or supplying any Equipment and/or Goods shall become vested and shall vest in the Company absolutely and shall also be subject to the other provisions of this Condition 10.3.
10.4 When Equipment is hired to the Customer, the Customer acknowledges and agrees that if the Customer’s project is photographed primarily with the Company’s cameras, the Customer shall give the Company credit on all media in which the Customer’s project is distributed, exhibited or otherwise exploited, including, without limitation, negative film stock and all forms of digital media.
11. FORCE MAJEURE:
11.1 The Company shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, Act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, explosion, abnormal weather conditions, government action, shortages of materials, labour or manufacturing facilities or default of any suppliers or subcontractors.
12.1 Any notice which must be given under the Contract may either be delivered personally or posted.
12.2 Notice given by post must be pre-paid and correctly addressed:
(a) in the case of a limited company to its registered office; and
(b) in any other case to the recipient whose address is set out in the Contract (unless the recipient has notified another address to the other party to the Contract in accordance with this paragraph, in which case to such other address).
12.3 A notice delivered personally is deemed served upon delivery.
12.4 A posted notice which complies with Condition 12.2 is deemed served on the second business day after the date of posting.
13.1 The Contract shall constitute the entire agreement between the parties and shall supersede any previous agreement in relation to its subject matter. The Customer acknowledges and agrees that in entering into the 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 a party to the Contract or not) other than as expressly set out in the Contract and its only remedy for breach of the Contract shall be for breach of contract under the terms of the Contract.
13.2 No variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.3 The Company, but not the Customer, may assign the Contract or any part of it to any person, firm or company and shall also be entitled to subcontract any or all of its obligations under all or any part of the Contract.
13.4 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.6 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
13.7 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.8 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.9 The Contract and these Conditions shall be construed and applied in accordance with English law, and the English Courts shall have non-exclusive jurisdiction in any dispute relating thereto.