AV PROJECTIONS Ltd TERMS AND CONDITIONS of TRADING
This contract and the schedule (which forms an integral part of the contract) shall be read together as one contract and words and expressions to which specific meanings have been attached in any part of this contract or of the schedule shall bear such specific meanings wherever they may appear.
A) Professional Hire
In these conditions unless the context otherwise appear the following words and expressions shall have the following meanings: –
“These Conditions” means the conditions of business herein contained
“The Company” means AV Projections Ltd
“The Client” means the person, the firm or the company who or which has agreed to trade with the Company.
“The Agreement” means the agreement between the Company and the Client for goods supplied and services rendered.
The Agreement is subject to these Conditions which supersede all previous communications representations and agreements whether written or oral and no additions or alterations to these Conditions shall be binding on the Company unless agreed to in writing and signed by a duly authorised officer or employee of the Company. In the case of any conflict between any terms and conditions proposed by The Client and these Conditions the latter shall prevail.
A) Professional Hire
The following words and expressions shall have the following meanings:
a) “The Equipment” means the equipment specified on the Rental Agreement including (if any) the accessories and flight cases specified on the Rental Agreement and any part or parts of the same.
b) “The Technician(s)” means the employee(s), agent(s), or subcontractor(s) of the Company (if any) supplied with the Equipment to operate the same.
c) “The Hire Period” means the period commencing when the equipment is delivered or collected to the Client and ending when the equipment is recovered by or returned by the Company, provided that if the equipment is lost or so badly damaged that it has to be repaired or replaced, the hire period does not end until the company is able to repair or replace it.
The Company endeavour to ensure that the Equipment is sound and in good order and condition at the time of delivery to or collection by the Client but it shall be the responsibility of the client to ensure that the equipment is fully suitable in all respects (including type and condition) for the purpose of which it is hired. Upon delivery by the company or collection by the Client the equipment shall be examined and checked by the client before use and if found to be defective or deficient will be replaced or defects or deficiencies remedied by the company without additional charge. The Company shall not in any circumstances be liable to the Client or any third party in respect of any claims for loss of profits special damage or any consequential loss whatsoever or be under any liability for or in respect of loss or damage to property how so ever caused whether arising directly or indirectly from the hire or use of the Equipment by The Client. The Client shall use or cause to be used the equipment in a skilful and proper manner and shall at his own expense keep it in good and substantial repair and condition (save for wear and tear) and further shall take all precautions necessary to ensure its safety and security. The Client will not interfere in any way with the Equipment or the mechanism thereof or any nameplates or signs or serial numbers thereof and will not expose the Equipment to the elements and will keep the Equipment protected in all respects. Unless the same shall have been caused by the default or misconduct of the Technicians any loss of or damage to the Equipment including loss or damage caused by nonfamiliarisation or misuse of the same is the sole responsibility of the Client who will be charged with the cost of repair or full replacement value of the Equipment as the case may be. The Client must not repair or request a third party to repair or attempt to repair the Equipment. Any damage howsoever caused to the equipment shall be notified forthwith to the company.
Any order or instruction required to be given to the company by the Client shall be given by him or his duly authorised agent. The Company shall not be liable for the consequences of inaccuracies or misunderstandings resulting from any order or instructions by the Client not received by the Company in writing or so confirmed. The Client shall be solely responsible for any statement representation order instruction guidance or advice made by the Client to any Technician.
The equipment shall be delivered and collected at such time and place as shall be mutually agreed between the Company and the Client. If delivered to the client the signature of any person being or sufficient evidence of delivery. The Company shall use its best endeavour to comply with any time schedules but will accept no liabilities for non delivery of equipment or non arrival of Technicians by a specific time or date or within a specified time from receipt of order. The Company shall not be liable for delays due for unforeseen circumstances or due to causes beyond its control including but not limited to acts of nature acts of Government, labour disputes and delays in transport.
Unless otherwise agreed in writing between the Company and Client it shall be the responsibility of the Client to return the Equipment to the Company on termination of the Hire. If the Company agrees to collect the Equipment on termination of the Hire the Client shall remain fully responsible safety repair and condition (subject as aforesaid) of the Equipment until it is in the possession of the Company.
During the continuance of the Agreement the Client shall pay to the Company by way of rent for the hire of the Equipment and the Technicians the Company’s current hire charges or such other hire charges as may have been agreed in writing between the Company and Client. The Client shall be liable for payment of hire charges for the term of the Hire Period.
Without the previous consent of the Company equipment must not be used in any abnormal or hazardous assignment, taken out of the United Kingdom or taken from ground other than on a regular scheduled flight by any airline recognised by IATA. The Client shall be solely responsible for obtaining all custom clearances licences and permits as shall be necessary to take the Equipment out of the United Kingdom. If any Equipment taken out of the United Kingdom is stolen or damaged or breaks down and the Company agrees to replace the same the Company’s liability shall only extend to delivery of any replacement at an address in the United Kingdom.
In addition to hire charges for the Equipment the client shall pay all delivery charges.
The client shall pay Value Added Tax (at the current rate) on and in addition to all charges due to be paid by the Client to the Company under the terms of the Agreement. All hire and other charges shall be due and payable in full within 30 days of the invoice date.
Without prejudice to any other right or remedy available to the Company in the event of the cancellation of an order by the Client the Company reserves the right to make a cancellation charge of 50% of the order.
The Equipment at all times remains the property of the Company and the Client shall have no right title or interest therein save that of a hirer thereof under these conditions.
The amount of the deposit (if any) shall be returned to the Client without interest when the Equipment has been returned to the Company and all charges and other monies due to the Company under the terms of the Agreement have been paid.
The Agreement may be terminated by the Company forthwith by written notice given by the Company to the Client to that effect on the happening of any of the following events namely if the Client fails to pay any charges hereunder within 7 days of the same having become due (whether demanded or not) or fails to observe or perform any other of these Conditions or if the Client commits any act of bankruptcy or being a company shall have a receiver appointed to any of its assets or an Administration Order made or if it shall enter into liquidation whether compulsory or voluntary solely for the purposes of reconstruction or makes any arrangements for the benefit of its creditors or suffers any distress or execution or if it abandons the Equipment or if the Client shall sell, assign, part with or cease to carry on its business.
The termination of this agreement whether under the provision of clause 13 or otherwise shall not affect the Company’s rights under this agreement in particular but without prejudice to the generality thereof the right to recover all hire charges and other monies due to at the date of termination and to recover damages for any breach of the conditions and stipulations of this agreement including damages calculated by reference to the hire charges for the Equipment where it has been lost or damaged and has to be repaired or replaced.
No failure, delay or indulgence on the part of the Company in exercising any power or right conferred upon the company in the terms hereof shall operate as a waiver of such power or right.
The company reserves the right to subcontract all or any part of the Clients order or to assign or otherwise deal in anyway whatsoever with the company’s interest in the Equipment and in the agreement.
The company cannot accept any responsibility in connection with any loss or damage to or in respect of any materials used on in or in connection with the use of the Equipment. Furthermore the Company shall not be liable to the Client whether in “agreement”, tort (including negligence) or otherwise for any loss of profits, loss of savings, consequential loss or damage whatsoever (whether reasonably foreseeable or not)
(I) The Client undertakes to insure all hired Equipment supplied by the Company at its full replacement value against physical loss or damage from the time it leaves the company’s premises until it is returned to the Company’s premises.
(ii) Where the Client does not effect its own insurance the Client shall notify the Company prior to hired equipment leaving the Company’s premises and the Company will effect insurance on the Clients behalf full details terms of the cover provided and the terms exceptions and conditions of the policy shall be made available by the Company at the Client’s request it must be noted that the Client is required to pay the first £1000.00 of any loss and that additionally the Client will remain liable for additional hire charges and for all risks of loss or damage (including for example war risks) without limitation in accordance with these Conditions. A charge will be made by the Company to the Client in respect of such insurance. The Client undertakes not to do or omit to do anything, which would have the effect of invalidating such insurance.
(iii) Where the Client effects insurance the Client Shall ensure the Company’s interest is noted by insurers and shall notify the Company accordingly and give such other details of the policy or policies as the Company may require. Any insurance arranged by the Client shall be in terms not less favourable than the terms of the insurance offered by the Company.
1.1 The Production shall be base on the Proposal/Treatment agreed between The Company and the Client. These shall not be materially varied by the Company without the consent of the Client.
1.2 These conditions shall be deemed to be incorporated in the agreement between the Company and the client to the Production (“the Production Proposal/Treatment”)
Contract Price and Terms of Account.
2.1 Any price quoted by the Company before the Production Proposal/Treatment is entered into is an estimate only.
2.2 The total contract price payable by the Client (“Total Contract Price”)shall comprise the initial contract price specified in the Production Proposal/Treatment is entered into is an estimate only.
2.3 The Total Contract Price shall be payable in accordance with the payment schedule contained in the Production Proposal/Treatment normally:
30% upon receipt of the order to proceed with the project.
30% upon commencing production.
30% upon commencing the event.
10% together with any agreed expenses when all costs are finalised.
2.4 VAT will be charged at the appropriate rate.
2.5 If the Client shall fail to make any payment on the due dates, then The Company reserve the right to suspend production or withhold products and services until payment is received.
Uses and Territories
3.1 The client shall use the Production or any excerpt from it only for the purposes and in the territories stated in the Production Proposal/Treatment.
3.2 The shall not exhibit the Production or any excerpt from it theatrically or otherwise in other territories or for other purposes without first obtaining the written consent of The Company and meeting any payments, including those for copyright and /or any other permission, that may be necessary as the result of this extended usage.
4.1 Where the approval of the Client is required to aspects of the production the Client shall not unreasonably withhold or delay such approval.
4.2 The Company may increase the contract price in the event of delays caused by the Client failing to supply adequate and correct information, materials and/or failing to make payments on the due dates in accordance with condition 2.3
4.3 The Client shall obtain all necessary licenses and consents relating to any acts of broadcasting, projecting, recording, or other communications and the use of live or pre-recorded material for such purpose and the Client shall indemnify the Company against all loss damages, costs and expenses incurred by the Company relating to any claim that the use of broadcast projection, recording or other communicator of any material that infringes any copyright, trademark or intellectual property rights of any third party, or is undertaken without valid license or permission.
5.1 The Company shall carry out such changes to the Production or provide additional material or services not included in the original Proposals/Treatment as the Client reasonably requires and the cost of these changes (as notified in accordance with condition 10) shall be borne by the parties as follows
5.1.1 By the Client if changes are required as a result of the Clients desire to depart materially from the Proposal/Treatment or other previously agreed stages of production or if the Client has unreasonably delayed in notifying The Company of any changes.
5.1.2 By The Company if the changes are required as a result of the changes of The Company’s material departure from previously agreed stages of production or if the programmes is of unsatisfactory technical quality.
6.1 The Company shall obtain all such rights in respect of dramatic, musical literary or artistic work including photography, photographic library materials and music composition as may be necessary for the Production and its agreed use.
6.2 The Company owns the copyright of the Production and grants the Client a licence to use the Production intact for the purposes and in the territories stated in the Production Proposal/Treatment.
6.3 No excerpts from the Proposals/Treatment or Production shall be reproduced or utilised in any manner without the prior written consent of the Company and it is agreed that all rights to any and all materials so produced belong to The Company.
6.4 If the Client contemplates the use of any elements of the Production (including audio, graphics, photography or other material in audio visual, motion picture, television or other productions and/or in print, promotion or advertising) such as requires the prior written approval of The Company any additional fees will be payable to The Company.
6.5 Unless agreed provision of further copies and foreign language versions of the Production and transfer to other media shall be commissioned only from The Company and shall be subject to separate agreement between the Client and The Company.
7.1 The Client undertakes to obtain the necessary rights in respect of any dramatic, literary, musical or artistic work, library material, music or other materials as it may supply to the Company for the Production and to obtain all consents necessary to ensure compliance with the Performers Protection Acts 1958-1972 in relation to performances supplied to the Company for the Production and to indemnify The Company against all actions, claims and demands, in respect of the use of these works, material or music, including performing rights.
7.2 The Client agrees to indemnify The Company against all actions, claims or demands, (civil or criminal), which may arise out of the aural or visual content of the Production or any exhibition of it.
7.3 The Client will be responsible for and shall indemnify The Company against all damage to or loss of equipment belonging to the Company or its agents or sub contractors during any period when the equipment is not being operated or supervised by an engineer employed by the Company, its agents or sub contractors and against all damage to, or loss of equipment by reason of any act or default of the Client or persons under its control.
Limitation of Liability
8.1 Neither The Company, nor any of its directors, officers, employees or agents, shall be liable for any injury or loss arising from any action taken or omitted by it or them, under or in connection with this agreement or the Production unless caused by its or their negligence or wilful misconduct.
8.2 The Company’s total liability under or in connection with this agreement (except in the case of wilful misconduct), whether sounding in contact or tort, is limited in respect of any event, or series of connected events, to a sum equal to the Total Contract Price.
Delay or Non-Execution
Delay or non-execution in the Production by The Company due to war, fire, flood, strike, lock-out, industrial action, tempest, accident or any other cause whatsoever beyond its control shall not give rise to any claim whatsoever against The Company. In the event of unreasonable delay due to the above causes the Client shall be entitled to terminate the agreement subject to payment of all costs incurred and commitments undertaken by the Company to the date of termination.
10.1 The contract price shall be increased by the additional cost that The Company necessarily incurs on account of changes by the Client within the terms of clause 5, increase in the cost of labour and/or materials or services, delays due to unsuitable weather before or whilst the production unit is on location and/or failure by The Client to provide information or facilities at the time(s) and/or manner agreed between the client and The Company.
10.2 The Company shall notify any such increase in the contract price to the client as soon as practicable.
11.1 All materials entrusted to the Company are held by the Company at the Client’s own risk. The Client shall insure these materials so that any right of subrogation by the insures against The Company is excluded, or The Company will, at the expense of the Client, insure the materials on the same terms.
11.2 The Company shall be entitled, in its absolute discretion, and at the expense of the Client, to effect pluvius, or similar policies, in respect of contingencies, which may effect the Production.
Termination of Contract
12.1 If at any time the Client wishes to abandon the Production the Client may, by notice in writing to The Company forthwith terminate the agreement whereupon:
12.1:1 The Company shall take immediate steps to bring to an end all expenditures or commitments relating to the Production and shall deliver to the Client as soon as possible a statement of all expenditure in respect of the Production;
12.1:2 The Client shall reimburse The Company its expenditure under 12.1:1 and additionally, cancellation fees amounting to 10% of The Total Contract Price plus VAT at the date of cancellation plus any fees, damages, costs, expenses for which The Company is liable as a result of terminating its commitments relating to the Production;
12.1:3 On receipt of the amount payable under 12.1:2 The Company shall transfer to the Client the documents and materials produced up to the date of termination in connection with the Production which would normally be transferred on completion but the client shall not be entitled to use such documents and materials except upon payment of additional fees agreed and as specified in condition 6.
12.2 Either party shall be entitled to terminate this agreement for with by written notice to the other party if that other party if that other party shall be the subject of any act or proceeding under the Insolvency Act 1986 or shall have an execution or distress levied on its goods which is not paid out within 14 days or have a receiver appointed in respect of any of its assets.
Variation of Production Proposal/Treatment
13.1 Variations to the Proposal/Treatment may be recorded in a “Project Change Notice” delivered by The Company to the Client.
13.2 Any variation so recorded shall be deemed to have been accepted unless the Client gives The Company written notice to the contrary within 2 working days of delivery of the Project Change Notice.
13.3 These conditions shall not be varied except in writing signed by a proper authorised agent or on behalf of each of the parties hereto.
1.1 This agreement shall be governed by English Law in every particular, including formation and interpretation, and shall be deemed to have been made in England.
1.2 It is herby agreed, for the exclusive benefit of The Company, that any proceedings arising out of, or in connection with, this agreement may be brought in any court of competent jurisdiction in London.
1.3 The submission by the parties to this jurisdiction shall not limit the right of The Company to commence any proceedings arising out of this agreement in any other jurisdiction it may consider appropriate.
1.4 The Company shall not be liable to the Client or be indeemed to be in breach of the “agreement” by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the equipment, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control.
(i) Act of God, explosion, flood, tempest fire, accidents or strikes, lockouts or other industrial activities or trade disputes (whether involving employees of the Company or third parties)
(ii) War or threat of war, sabotage, insurrection & civil disturbance.