TERMS AND CONDITIONS
1. Introduction And Scope
- 1.1 In these terms and conditions the following words and expressions shall have the following meanings:-
- 1.1.1 ‘Company’ means Shift 4 Ltd (Company No. 2346577) whose registered office is at Unit 3, Crusader Industrial Estate, Hermitage Road, London N4 1LZ.
- 1.1.2 ‘Equipment’ means the equipment agreed to be supplied by the Company to the Hirer on a case by case basis together with any accessories, parts and cases. For the purposes of this agreement references to ‘Equipment’ include any additional Equipment provided to the Hirer during the Hire Period from time to time.
- 1.1.3 ‘Hire Period’ means the period starting at the time of delivery of the Equipment to the Hirer or collection of the Equipment by the Hirer and ending at the time of the return delivery or collection of the Equipment.
- 1.1.4 ‘Technician’ means the employee or subcontractor of the Company agreed to be supplied with the Equipment to operate the Equipment or any part of it and ‘Technicians’ shall be construed accordingly.
- 1.2 These general terms and conditions shall apply to any hire of Equipment or the hire of Equipment with Technicians by the Company to the Hirer.
- 1.3 If there is any conflict between our hire contract or any special conditions included in the hire contract and these terms and conditions the hire contract shall take precedence to the extent of the conflict.
- 1.4 No additions or alterations to these terms and conditions shall be binding on the Company unless agreed in writing and signed by a duly authorised signatory. Any terms and conditions proposed by the Hirer shall only apply if agreed by the Company in accordance with this paragraph.
- 2.1 Each agreement between us shall commence on the date the hire contract is signed or agreed in writing (including email) (or, if earlier, the first day of the Hire Period) and shall, unless terminated earlier in accordance with clause 12, continue until the expiry of the Hire Period.
- 2.2 If the Hirer wishes to extend the Hire Period the Company shall use reasonable endeavours to accommodate such extension but acknowledges that this may be subject to additional Fees or other conditions.
- 3.1 The Company shall provide the Equipment or equivalent equipment to the Hirer for the Hire Period upon the terms and conditions contained in this agreement.
- 3.2 The Company reserve the right to refuse the acceptance of any order without assigning any reason for such refusal. Orders may be placed verbally or in writing and there upon such orders become binding provided that all cancellations will only be effective if given in writing by the Hirer.
- 3.3 Whilst the Company shall make every effort to assist the Hirer with technical knowhow and experience and shall provide general advice and service the Company shall not guarantee the Hirer will achieve his intended result by the use of hired Equipment and other facilities.
- 3.4 The Company agrees that it will use all reasonable endeavours to ensure that the Equipment is in good working condition immediately prior to the start of the Hire Period. If there is any problem with the Equipment, the Hirer shall notify the Company of the problem and the Company shall use reasonable endeavours to promptly fix the problem or replace the relevant Equipment, as it reasonably deems appropriate. The Company reserves the right to supply an alternative piece of Equipment provided it shall have reasonable equivalent functionality.
- 3.5 The Hirer is responsible for ensuring that the Equipment is suitable for the Hirer’s purposes. The Hirer shall only use the Equipment for the creation and recording of audio-visual material (‘Production Material’) and shall comply with all applicable laws and regulations.
- 3.6 The Hirer shall take good care of the Equipment and, to the extent that the Hirer operates the Equipment, it shall ensure that it is operated with all reasonable skill and care by appropriately qualified and experienced employees, agents or sub-contractors (together, ‘Personnel’). The Hirer shall use or cause to be used the Equipment in a skilful and proper manner and shall at its own expense keep it in good condition and shall take all precautions necessary to ensure its safety and security.
- 3.7 The Hirer must not repair or attempt to repair or request a third party to repair or attempt to repair the Equipment.
- 3.8 The Hirer agrees and undertakes that it will not open the outer case (if any) of the Equipment or of any item or part of the Equipment nor interfere in any way with the Equipment or its mechanism or any nameplates or signs or serial numbers and will not expose the Equipment to the elements (in particular to salt water and spray, sand and grit) and will keep the Equipment protected in all respects at all times.
- 3.9 If the Hirer wishes to use any of its own equipment (including video tape or media cards) (‘Hirer Equipment’) in conjunction with or connected to the Equipment, the Hirer shall ensure that the Hirer Equipment is compatible for use in all respects with the Equipment.
- 3.10 If the Company makes good any damage the Hirer has caused to the Equipment, the Hirer shall reimburse the Company on demand the full costs including third party repair costs or full replacement costs if necessary.
4. Delivery And Collection
- 4.1 The Company shall use reasonable endeavours to ensure that the Equipment is sound and in good order and condition at the time of delivery to or collection by the Hirer but it shall be the responsibility of the Hirer to ensure that the Equipment is fully suitable in all respects (including type or condition) for the purpose for which it is hired. Upon delivery or collection the Equipment shall be examined and checked by the Hirer before being taken into use and if found to be defective or deficient will be replaced or defects or deficiencies remedied by the Company without additional charge. In no circumstances shall the Company be liable for any loss or damage of whatever kind however caused arising out of or in connection with the use of or the inability to use the Equipment.
- 4.2 The Equipment shall be delivered and collected at such a time and place as shall be mutually agreed between the Company and the Hirer. If delivered to the Hirer the signature of any person purporting to be an employee sub-contractor or agent of the Hirer shall be sufficient evidence of delivery.
- 4.3 The Company shall use reasonable endeavours to comply with any time schedules but shall not be liable in any circumstances to the Hirer for any liability claim or proceeding in respect of any loss or damage arising whether by reason of negligence or otherwise including without limitation non delivery of equipment or non arrival of Technicians by a specific time or date or within a specified time from receipt of order.
- 4.4 Unless otherwise agreed in writing between the Company and the Hirer it shall be the responsibility of the Hirer to return the Equipment to the Company on termination of the Hire Period. If the Company agreed to collect the Equipment at the end of the Hire Period the Hirer shall remain fully responsible for the Equipment until it is in the possession of the Company.
- 4.5 The Hire Period will be deemed to continue until such time as any damaged Equipment is repaired, or any Equipment that is lost, stolen, or damaged beyond repair is replaced provided that the amount of any additional hire charge payable as a direct result of theft, accidental loss or damage to Equipment shall not exceed 13 weeks.
- 4.6 The Equipment should be returned in the same condition as it was at the start of the hire period, fair wear and tear excepted, provided that if the Equipment is lost, damaged or destroyed the Hirer shall pay the Company an extra hire charge until such time as the Equipment is replaced (by an equivalent item) repaired or recovered or at the Company’s election pay any cross hire charges the Company incurs sourcing a temporary replacement.
- 4.7 Without the prior written consent of the Company the Equipment must not be used on any abnormal or hazardous assignment, taken out of the United Kingdom or taken from the ground other than on a regular scheduled flight by an airline recognised by I.A.T.A. The Hirer shall be solely responsible for obtaining all customs 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 lost or damaged or breaks down and the Company agreed to replace the same the Company’s liability shall only extend to delivery of any replacement at an address in the United Kingdom.
5. Provision Of Technicians
- 5.1 The provision of this clause 5 shall only apply if the Hirer has opted to have Technicians supplied by the Company operating the Equipment. The Company reserves the right where the Equipment is, in its absolute discretion, of a high technology specification to require that the Hirer uses the services of a Technician at the cost of the Hirer and in such cases only the Technician may use such Equipment.
- 5.2 The Company shall provide the Technicians to the Hirer to operate the Equipment during the Hire Period in accordance with the hire contract.
- 5.3 The Company shall ensure that the Technicians are appropriately qualified and experienced to operate the Equipment however Technicians remain freelance contractors and the Company are not responsible for the Technicians actions, timeliness, skills or the outcome of their work.
- 5.4 The Hirer shall be solely responsible for any instruction, guidance or advice made or given by the Hirer to any Technician.
- 5.5 If the Hirer reasonably identifies any performance issue with a Technician, the Hirer shall notify the Company (giving full details) and the Company shall use reasonable endeavours to promptly resolve the issue with the relevant Technician and the Hirer. The Company shall use reasonable endeavours to assign an alternative Technician for the remainder of the Hire Period.
- 5.6 The Hirer shall, and shall procure that all of its Personnel, treat the Technicians in a professional manner.
- 6.1 The Equipment remains at all time the property of the Company and the Hirer shall have no right, title or interest therein save as hirer under this agreement. The Hirer shall not sell or offer for sale, assign, mortgage, pledge, underlet, lend or otherwise deal with the Equipment and the Hirer will keep the Equipment in its possession and will not allow any lien or other encumbrance to be created in or over the Equipment.
- 6.2 The Hirer agrees that a representative of the Company may enter upon any premises upon which Equipment may be kept or reasonably believed to be kept for the purpose of its recovery at the termination of the Hire Period, and where such Equipment is on premises not occupied or under the control of the Hirer, the Hirer shall secure for the Company permission to enter for such purposes and the Hirer shall compensate the Company for any costs incurred in repossessing the Equipment.
7. Digital Storage
- 7.1 The Company will supply Equipment which contains recording functionality with an agreed kind and quantity of data storage. It is the responsibility of the Hirer to decide whether the amount of data storage is sufficient for its needs. Extra storage can be supplied and will be charged for individually at a pre-determined hire charge. Any data storage supplied by the Company shall remain at all times the property of the Company and may not be substituted for alternative data storage save with the prior written agreement of the Company. Any data storage retained by the Hirer after the return of the Equipment supplied in conjunction with that data storage will be charged for on a daily hire basis or at the Company’s election the full replacement costs of the data storage.
- 7.2 The Hirer expressly acknowledges and agrees that data storage returned to the Company will be erased of all data upon receipt and will not be backed up or stored by the Company. Copying and backing up data recorded on data storage shall be the exclusive responsibility of the Hirer. The Company shall not be responsible for lost or damaged data recorded onto data storage nor for the Hirer’s failure to transfer all data for data storage before it is returned to the Company and it is the responsibility of the Hirer to verify that all the data has been successfully transferred prior to the return of the data storage.
8. Company Vehicles
- 8.1 No person other than those authorised by the Company may in any circumstances drive any vehicles supplied by the Company. Where such vehicles are used by or on behalf of the Hirer in circumstances not covered by the Company’s insurances, the Hirer undertakes to affect the appropriate insurance.
9. Health And Safety
- 9.1 The Hirer shall, and shall procure that its Personnel shall, at all times comply with all health and safety policies and other regulations governing any use of the Equipment or the Hirer’s activities or as otherwise notified to the Hirer by the Company from time to time.
- 9.2 The Hirer will ensure that, no later than seven days prior to Hire Period, the Hirer shall submit to the Company a written risk assessment of the Hirer’s proposed activities involving the Equipment and/or the Technicians. All such activities are subject to the Company’s prior written consent, which shall not be unreasonably withheld. The Hirer acknowledges that, where potentially hazardous activities are involved, such consent may be subject to the Hirer obtaining insurance in addition to that set out in clause 16 to cover such hazardous activities.
- 9.3 The Hirer agrees that if it is necessary to obtain any regulatory consents for the Hirer’s activities, the Hirer shall do so prior to the Hire Period and shall provide to the Company copies of such consents.
- 9.4 The Company (or a third party nominated by the Company) shall be entitled at any reasonable time without prior notice to enter any place where the Equipment and/or Technicians are being used by the Hirer in order to ensure compliance with these terms and conditions.
- 10.1 The Hirer shall pay the Fees in accordance with the payment terms set out in the hire invoice. These are that the Hirer will pay all Fees within 30 days of the invoice date.
- 10.2 During the continuance of the agreement the Hirer shall pay to the Company by way of rent for the hire of the Equipment and the supply of Technicians the Company’s charges as agreed in writing between the Company and the Hirer. In the case of the hire of the Equipment the Hirer shall be liable for payment of charges for the time from which the Equipment is due for collection until the time of its return to the Company. A 24 hour period or part thereof constitutes a one day hire.
- 10.3 Equipment returned late will be charged at the single agreed daily rate for each 24 hours or part thereof irrespective of any reduction or discount that may have been negotiated on the original booking. This is at the Company’s discretion.
- 10.4 The Fees do not include VAT, which shall be payable by the Hirer in addition.
- 10.5 Should the Hirer fail to make any payment in full on the due date under this agreement, the Company may at its option a) charge interest on the outstanding amount accruing on a daily basis at the rate of 12% above the base rate of The Bank of England from time to time; and/or b) suspend the provision of Equipment or the provision of Technicians on 24 hours written notice to the hirer.
- 10.6 All invoices are due for payment within 30 days of the invoice date. Any invoice outstanding beyond this period, at the discretion of the Company, may be referred to a debt collection agency and will be subject to a 15% surcharge plus VAT to cover the collection costs incurred. This surcharge together with all other charges and legal fees will be the responsibility of the Hirer and will be legally enforceable.
- 10.7 In addition to the hire charges for the Equipment the Hirer shall pay all delivery charges and all collection charges, at an amount agreed with The Company in advance in writing.
- 10.8 The amount of the deposit (if any) specified in the hire contract shall be returned to the Hirer without interest when the Equipment has been returned to the Company and all charges and other monies due to the Company have been paid including any deductions for lost or damaged Equipment. The Deposit is a deposit against default by the Hirer and the Company shall be entitled to apply the Deposit against any Fees or any loss or damage to the Equipment.
- 11.1 Without prejudice to any other right or remedy available to the Company in the event of a cancellation of an order by the Hirer the Company reserves the right to make a cancellation charge in respect of Equipment and Technicians as follows:
Notice of cancellation % of total charges 8 days or more 25% Between 7 and 2 days 50% Less than 48 hours 75% Less than 24 hours 100%
- 11.2 Notwithstanding clause 11.1, the Hirer acknowledges and agrees that where the Company has incurred fees due to Technicians or to third parties relating to the cross hire of equipment to fulfil the Hirer’s order and which the Company is obliged to pay then the Hirer will be liable for the full amount of such charges despite cancellation. The Company undertakes to use reasonable endeavours to mitigate any such charges.
- 12.1 Either Party may terminate this agreement immediately by notice in writing if the other Party: a) commits a material breach of any of the terms of this agreement and, if such breach is capable of remedy, fails to remedy the breach within 14 days of receiving notice from the terminating Party specifying the breach and requiring the breach to be remedied; or b) enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of a solvent amalgamation or reconstruction), or becomes insolvent (including bankruptcy in the case of an individual), ceases to carry on business, or compounds or makes any voluntary arrangement with its creditors or becomes subject to an administration order, or is unable to pay its debts as they fall due, or has a receiver or administrative receiver appointed over its assets, or takes or suffers any similar action due to debt.
- 12.2 This Agreement may be determined by the Company forthwith by written notice given by the Company to the Hirer to that effect on the happening of any of the following events: namely if the Hirer fails to pay any charges hereunder within 14 days of receiving notice of the samebecoming due (whether demanded or not) or fails to observe or perform any other of the terms and conditions (including failure to keep good care of the Equipment or maintain appropriate insurance) or if distress is levied or threatened on any of the Hirer’s property or if the Hirer abandons the Equipment. This is without prejudice to any other right or remedy which may be available to the Company.
- 12.3 The expiry or termination of this agreement for any reason shall not affect any rights and/or obligations accrued before the date of termination or expiry, or expressed or intended to continue in force after and despite expiry or termination.
- 13.1 In the clause 13, ‘Confidential Information’ means all technical, commercial and financial information, product information, trade secrets, knowhow and all information relating to the plans, intentions, transactions, affairs and/or business of a Party and/or the terms of this agreement.
- 13.2 Each Party shall keep secret and confidential all Confidential Information of the other and shall not (and shall procure that its employees and/or officers shall not) copy, use or disclose any such information to any third party, other than as may be necessary to exercise its rights or comply with its obligation under this agreement.
- 13.3 The obligation of confidence shall not apply where the Confidential Information is required to be disclosed by operation of lay; or was in the possession of the recipient prior to disclosure by the other Party; or is subsequently acquired from a third party without any obligation of confidence; or is or becomes generally available to the public through an act or default of the recipient; or is disclosed on a confidential basis for the purposes of obtaining professional advice.
- 13.4 On termination of this agreement each party shall on demand surrender to the other all materials relating to such Confidential Information in it or its personnel, agents or representatives possession.
- 13.5 The clause 13 shall continue in force notwithstanding the expiry or termination of this agreement, whatever the reason for such termination.
- 13.6 Notwithstanding the provisions of this clause 13, the Company shall be entitled to advertise its relationship with the Hirer for marketing purposes.
14. Intellectual Property
- 14.1 All intellectual property rights in Production Material (whether or not the Equipment is operated by Technicians) shall, as between the Parties, be owned by the Hirer.
- 14.2 The Hirer shall indemnify the Company from all claims, costs, damages and expenses (including reasonable legal costs) awarded against, or incurred or paid by, the Company as a result of or in connection with any alleged or actual infringement of any third party’s intellectual property rights arising out of any Production Material.
- 15.1 The Hirer shall be liable for any loss or damage to the Equipment caused by an act or omission of the Hirer, the Personnel or any guests or other third parties given access to the Equipment by the Hirer.
- 15.2 Notwithstanding anything else in this agreement, the liability of the Company to the Hirer under or in connection with this agreement, whether arising from contract negligence or otherwise, shall be limited as follows:
- 15.2.1 for liability arising from death or injury to persons or for fraud there shall be no limit;
- 15.2.2 for loss of or damage to physical property, the limit for any one or series of connected events shall be £250,000 pounds;
- 15.2.3 for any other liability, the aggregate liability shall be limited to 125% of the Fees paid or payable over the whole Hire Period.
- 15.3 The Company shall not be liable to the Hirer for i) any indirect or consequential loss ii) failure to realise anticipated savings, loss of data, goodwill or business opportunity.
- 15.4 The Hirer acknowledges that it is its own responsibility to ensure that the Equipment and Technicians are performing in accordance with the Hirer’s requirements throughout the Hire Period and, accordingly, subject to clause 15.2.1:
- 15.4.1 the Company’s sole liability in respect of any problems with the Equipment will be to fix the problem or replace the Equipment in accordance with clause 3.4;
- 15.4.2 the Company’s sole liability in respect of any issue with a Technician shall be to resolve the issue or replace the relevant Technician in accordance with clause 5.5; and
- 15.4.3 the Company shall not be liable for any faults in relation to the Production Material or otherwise for re-creating any Production Material or any costs associated with recreating it.
- 15.5 Nothing in this clause 15 shall affect the Hirer’s obligation to pay any Fees which are or would be properly due under this agreement.
- 15.6 To the extent permitted by law and except as set out in this agreement, Company expressly excluded all express and implied warranties and conditions.
- 16.1 The Hirer shall maintain in force at its own expense public liability insurance and all other insurances required by any applicable law.
- 16.2 Without specific written agreement to the contrary prior to the commencement of the Hire Period, the Hirer shall effect its own insurance on the Equipment. The Hirer shall ensure that the Company’s interest is noted on the Hirer’s insurance policy or policies and shall notify the Company accordingly and give such other details of the policy or policies as the Company may require. The Hirer’s policy shall be in terms no less favourable than those provided by the Company (full details of which will be supplied on request) and shall provide cover for all loss or damage whatsoever to the Equipment including the full replacement value of the Equipment and the full cost of repairing any damage.
- 16.3 The Hirer shall be responsible for insuring any Hirer Equipment. The Company shall have no responsibility for any loss of or damage to the Hirer Equipment except for loss or damage caused by the wilful or negligent acts of the Company.
- 16.4 The insurances referred to in this clause 16 shall be with a reputable insurer and shall not include unreasonable excesses which are unusual for this type of insurance.
- 16.5 Within 7 calendar days of a request by the Company, the Hirer shall provide evidence of insurances which it is obliged to maintain under this clause 16.
17. Force Majeure
- 17.1 Neither Party shall be liable for any breach of these terms and conditions caused by circumstances beyond the reasonable control of that Party and which prevent that Party from performing its obligation to the other. Circumstances beyond that Party’s reasonable control include but are not limited to acts of God, any form of Government intervention, terrorist activity, local or national emergency, power failure or breakdown in Equipment, sabotage or riots, and floods, fires, explosions or other catastrophes. A lack of funds shall not be regarded as a circumstance beyond that Party’s reasonable control.
- 18.1 Any notice or other communication required to be given or sent under this agreement shall be in writing and either delivered personally or sent by first class post or facsimile or email to the registered office for the time being of the recipient.
- 19.1 Neither Party intends that any term of this agreement shall be by virtue of the Contracts (Rights of Third Parties) Act 1999 enforceable by any person who is not a party to this agreement or permitted assignee of such a party.
- 19.2 The Hirer shall not transfer its rights and/or obligations under this agreement to a third party without prior written consent of the Company. The Company reserves the right to subcontract all or any part of the Hirer’s order and to assign or otherwise deal in anyway with the Company’s interest in the Equipment.
- 19.3 A failure or delay by either Party to exercise any right or remedy under this agreement shall not be construed or operate as a waiver of that right or remedy nor shall any single or partial exercise of any right or remedy preclude the further exercise of that right or remedy.
- 19.4 The Agreement and the documents referred to in it together represents the entire terms agreed between the parties in relation to its subject matter and supersedes and extinguishes any all previous contracts, arrangements (including any usage or custom and any terms arising through any course of dealing), representations, warranties of any nature whether or not in writing between the parties relating to its subject matter. All other warranties, terms and conditions implied by law are hereby excluded. Each party acknowledges that it has not relied on, or been induced to enter into this agreement by, a representation or warranty other than those expressly set out or referred to in this Agreement. To the extent permitted by law, a part is not liable to another part in contract or tort or in any other way for a representation or warranty that is not set out in this agreement.
- 19.5 The Company may from time to time change any of the terms of these terms and conditions which will then apply to all new hire of Equipment or Technicians on or after the date of the change.
- 19.6 Each of the provisions contained in this agreement shall be construed as independent of every other such provision, so that if any provision of this agreement shall be determined by any court or competent authority to be illegal, invalid and/or unenforceable then such determination shall not affect any other provision of this agreement, all of which other provisions shall remain in full force and effect.
- 19.7 This agreement and any non contractual obligations shall be governed by and construed in accordance with English law.
- 19.8 The English courts shall have exclusive jurisdiction to determine any disputes which may arise out of, under, or in connection with this agreement, except that where the Hirer or its parent companies are based in another jurisdiction then the Company may bring proceedings in the courts of that jurisdiction..