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. DEFINITIONS AND INTERPRETATION:
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 Services and/or any Equipment sold to the Customer (as applicable) payable to the Company by the Customer under the Contract.
Commencement Date: where Equipment is to be hired to the Customer, 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: Event Projection Limited, Reg No: 6664361. Registered Company Address: 2nd Floor, 168 Shoreditch High Street, London, E1 6RA
Conditions: these Terms and Conditions of Supply.
Confidential Information: any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential, which, for the avoidance of doubt, includes all Output Material.
Contract: any contract between the Company and the Customer for the hire or sale of Equipment and/or the supply of Services, incorporating these Conditions.
Creative Services: any services which require the creative input of the Company and/or which require the Company to provide content to the Customer, as applicable.
Customer: the person, firm or company who hires or buys the Equipment and/or who purchases the Services from the Company.
Data Protection Law: the General Data Protection Regulation 2016/679 (GDPR) or any equivalent provision which may replace the GDPR following the formal political separation of the United Kingdom from the European Union. the Regulation of Investigatory Powers Act 2000. the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699). the Electronic Communications Data Protection Directive (2002/58/EC). the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003). and all applicable laws and regulations which may be in force from time to time relating to the processing of Personal Data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction.
Equipment: any goods which the Company has agreed in the Contract to hire or sell to the Customer (if any).
Hire Charge: where Equipment is to be hired to the Customer, 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.
Hire Term: where Equipment is to be hired to the Customer, 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.
Input Material: any materials or information (including content) provided or required to be provided by the Customer to the Company in relation to the Services.
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.
Output Material: any materials or information (including content) provided by the Company to the Customer in relation to the Services.
Personal Data: shall have the meaning given to it in the GDPR.
Personnel: those employees of the Company and/or subcontractors (if any) as are stipulated in the Company’s acknowledgment of order to be provided to the Customer to perform the Site Services, subject to these Conditions.
Services: where services are to be supplied to the Customer, any, and all Creative Services and/or Site Services to be provided by the Company pursuant to the Contract, as applicable.
Site: the premises and any part of those premises to which the Equipment is to be delivered and/or at which any Site Services are to be performed, as applicable.
Site Services: any services which are required to be performed at the Site by the Company.
Technician means a technician/operator, either self-employed or a Company employee, that is arranged by the Company (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.
Termination Date: where Equipment is to be hired to the Customer, 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 Any reference to parties means the parties to the Contract and party shall be construed accordingly.
1.6 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 or following those terms.
1.7 Any reference to a Condition is to a clause of these Conditions.
1.8 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, recommendations or advice regarding any Equipment and/or Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company.
2.3 Where any Equipment is to be sold rather than hired to the Customer under the Contract, then:
(a) any reference to the hire of the Equipment in these Conditions shall be deemed to be a reference to the sale of that Equipment and the term hired shall be construed accordingly.
(b) the defined terms Commencement Date, Hire Charge, Hire Term and Termination Date shall not apply.
(c) the Customer shall be responsible for paying the Charges rather than the Hire Charge and every reference to the Hire Charge in these Conditions shall be deemed to be a reference to those Charges which are payable for the sale of the Equipment.
(d) Conditions 4.5 and 4.6 shall not apply.
(e) Condition 6 shall not apply.
(f) Condition 7 shall apply, save that Condition 7.2 shall be replaced with the following wording:
Title to the Equipment 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 the Equipment and all other sums which are or which become due to the Company from the Customer on any account.
(g) Condition 8.9 shall not apply. and
(h) Conditions 9.4 and 9.5 shall not apply.
3. CONTRACT FORMATION:
3.1 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches a written acknowledgment of order to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.2 Where the Company is required to provide Personnel to the Customer for performance of the Site Services, 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.
3.3 The quantity and description of the Equipment and/or Services shall be as stipulated in the Company’s acknowledgment of order issued pursuant to Condition 3.1.
3.4 All descriptive matter, specifications and advertising issued by the Company and any descriptions, illustrations, drawings, photographs or displays (including those relating to colours, materials, finishes, weights, sizes and dimensions), published in the Company’s catalogues or brochures or on the Company’s website are issued or published for the sole purpose of giving an approximate idea of the Equipment and Services described. They shall not form part of the Contract and this is not a sale by sample.
3.5 The Customer shall provide the Company with all Input Material and with all information, access, facilities, co-operation and support that may be required to enable the Company to discharge its obligations under the Contract to the Customer. The Customer shall ensure that all Input Material and all other required information is correct and complete. No liability shall be accepted by the Company for any errors, inaccuracies or omissions therein.
3.6 The Customer must supply the Company with all Input Material and all information requested by the Company within any time period reasonably stipulated by the Company.
3.7 The Customer must appoint one internal contact person who will serve as the final decision maker and be authorised to provide timely approval in writing for all required sign‐off stages, which shall occur at such times as shall be stipulated by the Company.
3.8 The Customer warrants to the Company that it has the legal right and authority to enter into and perform its obligations under the Contract.
3.9 If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
3.10 If either party requests a change to the scope of the Services, the Company shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change.
(b) any variation to the Charges, costs and/or expenses payable to the Company arising from the change.
(c) the likely effect of the change on the Services. and
(d) any other impact of the change on the terms of the Contract.
3.11 If any Equipment is to be designed, built, configured or altered by the Company in accordance with any Input Material submitted by the Customer, the Customer shall hold the Company harmless and shall fully indemnify the Company against all loss, damage, costs and expenses arising out of any claim for infringement of any Intellectual Property Rights of any other person resulting from the Company’s use of that Input Material.
3.12 The Customer shall be solely responsible for ensuring the suitability or fitness of any Equipment for any particular purpose and for ascertaining its compatibility or inter-operability with any other goods.
3.13 No order for Equipment and/or Services which has been accepted by the Company may be cancelled by the Customer without payment of a cancellation charge and the Company reserves the right to charge the Customer up to 100% of the invoice total in such circumstances.
3.14 No order for Equipment may be varied by the Customer without the Company’s prior written consent and subject to the payment to the Company of any and all costs, charges and expenses incurred by the Company in connection with the variation and in connection with effecting the variation as aforesaid. Variations to the Services are addressed in Conditions 3.9-3.10.
3.15 Subject to the provisions of Condition 8, no part of the Hire Charge (including any deposit) may be refunded under any circumstances.
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 The Company reserves the right, by giving notice to the Customer at any time, to increase the Charges to reflect any increase in cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, any increase in the costs of labour, materials or other costs of manufacture), or any matter attributable to the Customer, including any change in delivery dates, quantities or specifications for the Equipment and/or Services which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate, accurate or complete information or instructions.
4.4 Unless otherwise agreed in writing by the Company, any variation to any order for Equipment requested by the Customer which is approved by the Company pursuant to the provisions of Condition 3.14 shall entitle the Company to revise the Hire Charge.
4.5 The Company shall be entitled to vary the Hire Charge under any circumstances from time to time, by giving not less than 12 hours’ written notice to the Customer.
4.6 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.
4.7 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”.
4.8 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.
4.9 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.
4.10 The Customer shall reimburse the Company for all disbursements and expenses incurred by the Company in the course of providing the Services. The nature and type of those disbursements and expenses is set out in the Company’s acknowledgment of order.
4.11 The Company reserves the right to vary the Charges in the event of additional or increased costs, charges and/or expenses caused by or attributable to the matters mentioned in Conditions 3.9-3.10.
4.12 The Company will invoice the Customer according to the payment profile set out in the Company’s acknowledgment of order.
4.13 Where the Company’s acknowledgment of order provides for stage payments of any part of the Charges and any additional sums specified in the Company’s acknowledgment of order on the occurrence of specific events, the Customer shall be invoiced accordingly.
4.14 Where the Company’s acknowledgment of order provides for the Customer to be invoiced on a monthly basis or at other regular intervals, the Customer shall pay the Charges to the Company together with any additional sums payable to the Company in accordance with the corresponding invoice.
4.15 Unless otherwise agreed by the Company in writing, the Charges shall be payable in full within 7 days of the date of invoice. The Company reserves the right to request full payment of the Charges prior to the delivery of any Equipment, or the performance of any Services.
4.16 If any payment under the Contract is not made by the due date for payment, the Company may, without prejudice to any other right or remedy:
(a) cancel the Contract. or
(b) suspend the delivery of the Equipment and/or the performance of any Services.
4.17 Time for payment shall be of the essence.
4.18 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.
4.19 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
4.20 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.
4.21 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.
4.22 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.
5. DELIVERY AND PERFORMANCE:
5.1 Unless otherwise agreed in writing by the Company:
(a) delivery of the Equipment shall be made by the Company delivering the Equipment to the Site.
(b) performance of the Site Services shall take place at the Site. and
(c) performance of the Creative Services shall take place at the Company’s place of business, or at such other place as may be designated by the Company.
Where Equipment is to be hired to the Customer, the cost of packaging together with all transportation and carriage costs related to the delivery and collection of the Equipment (including the cost of all related insurance coverage and the cost of unloading and loading the Equipment) shall be borne by the Customer.
5.2 Any dates specified by the Company for delivery of the Equipment and/or 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 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 accept delivery of any of the Equipment, or the Company is unable to deliver the Equipment on time because the Customer has not provided appropriate instructions, documents, licences or authorisations, the Company will charge the Customer an abortive delivery charge and:
(a) the Equipment shall be deemed to have been delivered. and
(b) risk in the Equipment shall pass to the Customer (including for loss or damage caused by the Company’s negligence).
(c) the Company may store the Equipment until delivery, whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance). or
(d) hire the Equipment at the best price readily obtainable and (after deducting any reasonable costs and expenses in connection with the storage and expedited hire of the Equipment), charge the Customer for any shortfall below the amount of the Hire Charge.
5.6 The Company may deliver the Equipment 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 (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 would in the ordinary course of events have been received.
5.9 Any liability of the Company for non-delivery of the Equipment shall be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Equipment.
5.10 Unless otherwise agreed with the Company in writing, the Customer shall ensure that all licences, consents and permits which are or which may be required in connection with the supply, deployment and use of the Equipment and/or the provision and performance of the Services are duly and timely obtained and maintained and that all laws, regulations, ordinances and by-laws in relation to any of the foregoing matters are fully complied with, in each case at the Customer’s cost.
5.11 The Company reserves the right to revise the Charges if any licence, consent or permit 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 Site Services to the Customer, the Customer shall, at the Customer’s cost:
(a) ensure, before the Services are due to commence, that the Site is fully prepared, where this is material to the proper performance of the Services.
(b) allow sufficient access to and egress from the Site and procure adequate unloading space and facilities at the Site and full access to all utilities thereon.
(c) ensure the safety of any person present on the Site throughout the performance of the Services. and
(d) be solely responsible for reinstating the Site thereafter.
5.13 Any additional costs caused by any delay in, or any interruption to or suspension of, the performance of any of the Site Services which is caused by any condition or problem at the Site, or otherwise arising for reasons beyond the control of the Company, (including adverse weather conditions) shall be treated as a variation to the Customer’s original order and the Customer shall be liable for any such additional costs.
5.14 Any additional costs caused by any delay in, or any interruption to or suspension of, the performance of any of the Creative Services which is caused by, or is attributable to, any act or omission of the Customer, or otherwise arising for reasons beyond the control of the Company, shall be treated as a variation to the Customer’s original order and the Customer shall be liable for any such additional costs.
5.15 The Customer acknowledges that the Company bears no responsibility for the action or inaction of any member of Personnel supplied to undertake Site Services, save to warrant that any work undertaken by Personnel shall be performed with reasonable skill and care, subject always to the provisions of Conditions 8.5-8.9. Any member of Personnel undertaking Site Services 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.
5.16 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 individual 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 individual.
6. CARE OF THE EQUIPMENT, WHERE EQUIPMENT IS TO BE HIRED TO THE CUSTOMER:
6.1 The Customer hereby agrees that with respect to the 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 all stated tolerances of the Equipment and any and all instructions and directions given by the Company.
(b) take adequate and proper measures to protect the Equipment from loss, damage, theft, vandalism, improper use and all other reasonably foreseeable risks to the Equipment, protect the Equipment from the elements (particularly during periods of adverse weather) and take all reasonable precautions for the security and safety of the Equipment.
(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 and in default of such insurance as aforesaid, the Company may charge the Customer for suitable insurance.
(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 3 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 theft of, loss of, destruction of, damage or deterioration to, and/or breakdown of, the Equipment.
(i) protect the Equipment against distress, execution or seizure and keep the Equipment at all times under its control. and
(j) be responsible for and shall fully reimburse the Company for any and all expenses, costs, losses 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, resulting from any breach of any of the Customer’s obligations hereunder, or otherwise due to the Customer’s negligence, misdirection and/or misuse of the Equipment.
6.2 The Customer hereby agrees that with respect to the 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 install thereon or affix thereto any equipment or item without the Company’s prior written consent.
(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, re-hire, lease, sub-let, loan, assign, charge, pledge, or otherwise dispose of the Equipment or any interest therein, nor permit any lien to be created over the Equipment or any part of it (unless otherwise agreed by the Company). nor
(g) remove the Equipment from the Site, nor move the Equipment from that part of the Site at which the Equipment was initially deployed for use by the Customer.
6.3 The Customer shall make the Equipment available for collection by the Company at the Site 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 repairs and/or cleaning required to return the Equipment to a condition fit for re-hire and to continue to pay the Hire Charge for such reasonable period until such repairs and/or cleaning have been completed.
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.
7. RISK AND TITLE, WHERE EQUIPMENT IS TO BE HIRED OR SOLD TO THE CUSTOMER:
7.1 The Equipment shall be at the sole risk of the Customer upon delivery to the Site and the Company accepts no liability for its loss or damage after its delivery to the Site, howsoever caused.
7.2 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 collection of the Equipment at the Site by the Company.
7.3 The Customer’s right to possession of the Equipment 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 Equipment.
7.4 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, LIABILITY AND INDEMNITY:
8.1 Where Equipment is to be hired to the Customer, the Company shall, at the Company’s option, repair or replace the Equipment or refund the Hire Charge if the Equipment is proved to the reasonable satisfaction of the Company to be damaged or defective due to faulty materials or workmanship at the time of delivery. Where Services are to be supplied to the Customer, 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 appropriate portion of the Charges. These obligations shall not apply:
(a) if the defect arises because the Customer has repaired, maintained, altered or interfered with the Equipment without the written consent of the Company. or
(b) if the Customer did not follow the instructions for the use of the Equipment. or
(c) if the Customer is in breach of any of its obligations in Condition 6, with respect to the Equipment. or
(d) if the Customer makes any further use of any Equipment which the Customer has alleged to be defective after giving notice of any such defect. or
(e) if the full price for the Equipment and/or Services has not been paid by the time for payment stipulated in Condition 4. or
(f) if the defect in the Equipment 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 notice by email and by telephone of the defect or deficiency to the Company within 3 hours of the time when the Customer discovers or ought to have discovered the defect or deficiency.
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 or fitness for purpose of the Equipment and/or performance of the 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, depletion of goodwill, business interruption, increased purchasing costs, loss of opportunity, or loss of contracts and like loss) howsoever caused.
8.6 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.
8.7 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 or replacing the Equipment, re-performing the Services, or refunding the Hire Charge or the appropriate portion of the Charges, as applicable.
8.8 For the avoidance of doubt, where the Company opts to refund the Hire Charge or the appropriate portion of the Charges under this Condition 8, the Company shall only be obliged to refund that part of the Hire Charge or that part of the Charges which is referable to the damage, defect or deficiency which has been proved to exist (in accordance with the provisions of Condition 8.1) in relation to the Equipment 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.
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, 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 The Company shall be entitled to immediately terminate the Contract on giving written notice to the Customer if:
(a) the Customer 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 7.3 occurs.
9.2 Upon termination, the Customer shall pay to the Company any unpaid portion of the Hire Charge and/or the Charges (as applicable), together with all charges, 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 Where Equipment is to be hired to the Customer, then upon termination (or otherwise on the Termination Date), the Customer shall forthwith make the Equipment available for collection by the Company at the Site, subject to the provisions of Conditions 6.4 – 6.6.
9.5 If the Customer fails to abide by the provisions of Condition 9.4, the Company may, without notice, retake possession of the Equipment and for this purpose shall be entitled without notice, to enter upon the Site or upon any premises to which the Customer has access.
10. INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY AND DATA PROTECTION:
10.1 The Customer grants the Company permission to make use of all Input Material in any manner in which the Company deems fit for the purposes of fulfilling its obligations under the Contract.
10.2 The Customer warrants that all Input Material belongs to or is validly licensed to the Customer and that any and all use made thereof and work done in accordance with the Customer’s instructions shall not infringe any Intellectual Property Rights of any third party. The Customer shall hold the Company harmless and shall fully and promptly indemnify the Company against all liabilities, costs, damages and expenses which the Company may incur as a result of any and all use made thereof and/or work done as aforesaid which infringes any third party Intellectual Property Rights.
10.3 The Customer further warrants that no Input Material shall be illegal, offensive, abusive, indecent, defamatory or obscene and agrees to fully and promptly indemnify the Company against any claim arising from any use thereof.
10.4 Any and all Intellectual Property Rights (howsoever existing or arising), in relation to the Services and the Output Material shall at all times vest in and belong solely and exclusively to the Company.
10.5 The Customer acknowledges the Company’s ownership of any and all Intellectual Property Rights in the Services and the Output Material and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights.
10.6 Output Material may only be copied, reproduced, published or distributed:
(a) with the prior written consent of the Company.
(b) subject to such restrictions as the Company may require. and
(c) on condition that the Company shall be given full credit for any Output Material which is copied, reproduced, published or distributed in accordance with this Condition 10.6.
10.7 No licence to any Intellectual Property Rights in the Services or the Output Material shall be granted to or implied in favour of the Customer other than in accordance with the provisions of Condition 10.8, below. For the avoidance of doubt, the Customer agrees that it will not transfer or assign any rights or interest in the Services or the Output Material without the Company’s prior written consent.
10.8 Subject to the prior payment to the Company of all Charges, costs and expenses under the Contract, the Company grants the Customer a non-exclusive, revocable, non-transferable, non-assignable and personal licence to use any Intellectual Property Rights in the Services and the Output Material in connection with the single event for which said rights are intended by both parties to be used, but for no other purpose, unless otherwise agreed by the Company in writing. All Intellectual Property Rights arising from the exercise of this licence by the Customer shall vest in and belong solely and exclusively to the Company.
10.9 The Company retains the right in all cases to use the Output Material in any manner, at any time and in any part of the world (subject to any particular limitation, if any, previously agreed by the Company and then only to the extent of that limitation), for the purposes of advertising or otherwise promoting the Company’s work.
10.10 The Customer and the Company agree that in the course of the Company providing the Services to the Customer the parties will disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. Neither party shall use any Confidential Information for any purpose other than the discharge of its obligations under the Contract. For the avoidance of doubt, the Customer shall not use or exploit any of the Confidential Information of the Company in any manner not approved by the Company.
10.11 The Customer acknowledges that disclosure or use of Confidential Information in violation of Condition 10.10 could cause irreparable harm to the Company for which monetary damages may be difficult to ascertain or may be an inadequate remedy. The Customer therefore agrees that the Company will have the right, in addition to its other rights and remedies, to seek and obtain injunctive or other equitable relief for any breach or anticipated breach of Condition 10.10.
10.12 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Company under the Contract, and that the processing of that Personal Data by the Company for the purposes of and in accordance with the terms of the Contract will not breach the Data Protection Law.
11. FORCE MAJEURE:
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 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, adverse or abnormal weather conditions, government action, shortages of materials, labour or manufacturing facilities or default of any suppliers or subcontractors.
12. GENERAL:
12.1 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.
12.2 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.
12.3 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.
12.4 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.
12.5 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.
12.6 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.
12.7 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.
12.8 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business.
12.9 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.
12.10 The Contract and these Conditions shall be construed and applied in accordance with English law, and the English Courts shall have exclusive jurisdiction in any dispute relating thereto.