CONDITIONS OF BUSINESS of A & C LIMITED,
PRODUCTION CONSULTANTS, PRECISION ENGINEERS,
PHOTOGRAPHIC EQUIPMENT MANUFACTURES,
SELLING EQUIPMENT TO THE FILM & TV INDUSTRIES.
“A”
1. These Conditions of Business shall apply to all transactions for the supply of equipment, materials and services (including the services of technicians and other personal) by A & C Ltd.
2. In these Conditions A & C Ltd. supplying the equipment, materials and services is referred to as “the Company” and the company, person or firm dealing with the Company is referred to as “the Customer”.
3. The Customer acknowledges and agrees by placing orders with the Company that:-
(i) This is a business transaction in which both parties are freely entering.
(ii) These Conditions include clauses which exclude, limit or modify the liability of the Company and provide for an indemnity from the Customer in certain circumstances.
(iii)The value of the equipment and materials which may be entrusted to the Company by the Customer and of the work for which the customer obtains the Company’s equipment, materials and services will vary considerably and may be wholly disproportionate to the Company’s charges which are not and cannot be varied to accord to such values.
(vi) The processing, handling, storage or transportation by the Company of the Customers equipment and materials and the supply by the Company to the Customer of equipment and materials (by hire, sale or otherwise) and of services including the services of technicians at the customers risk has been the basis of dealings with Customers in the past and is the custom of the industry in which the Company is engaged.
(v) These Conditions apply whether or not the Customer is operational within the disciplines, custom and practice of the film, television or presentation industries.
4. The Customer similarly acknowledges and agrees that:-
(i) The Company does not and cannot give any guarantee that equipment and materials supplied will not be in some respects defective or unfit for their purpose. It is therefore necessary for the Customer to ensure that checks and tests are made upon equipment and materials before they are put into use both for completeness and correct functioning and fitness for the Customers purpose.
(ii) It is preferable for the Customer itself to collect equipment and materials to be supplied by the Company from the Company’s premises both to minimise the possibility of any delay and in order that the Customer may carry out the necessary checks and tests referred to in the foregoing subclass (i) prior to the equipment and materials leaving the Company’s premises. It is also preferable for the Customer to return the equipment to the Company’s premises. Where at the request of the Customer the Company delivers or collects equipment or materials such delivery or collection shall be at the Customers risk and expense as provided in these conditions. It is necessary for the Customer to ensure that its technicians are conversant with the type of equipment and services to be used. The Company is prepared to assist the Customer in this respect where so requested.
(iii)The Customer is in a better position than the Company to ensure the Customer’s materials, work, and operations against loss, damage or liability caused by, arising out of or in connection with equipment, materials and services supplied by the Company for the reasons (among others):-
(a) The Customer knows better than the Company the facts about intended use and situation of the equipment, materials and services and the potential losses flowing from any breakdown, accident, damage or delay for the purposes of insurance.
(b) The Customer is or ought to be insured against such risks in respect of the rest of its operation.
(c) The Customer is able and to ensure that equipment and materials are checked and tested in good time in order to minimize the risk of such losses.
(d) The Customer is able and ought to take precautions which will guard against or mitigate losses caused by any such breakdowns, accidents, damage or delays; for example: by having available where the circumstances so warrant the services of suitably qualified and experienced maintenance engineers and reserves of essential items by taking adequate precautions to protect equipment and materials from the elements and other perils, by filming with more than one camera by viewing daily rushes or by arranging for rushes to be viewed and reported on expeditiously.
(e) The Customer is generally in the best position to know what has occurred in the event of an insured occurrence.
(f) The Company’s prices are not calculated upon the basis that it is accepting liability for any such risks.
(iv) The Company advises and expects the Customer wherever possible to take out insurance (which must be marked “without recourse against the Company”) against loss,damage or liability caused by arising out of or connected with defects or deficiencies in equipment or materials or services supplied by the Company whether caused by negligence or breach of Contract of the Company or howsoever caused. The Customer ought also to insure against claims by the Customer’s employees, technicians, artists and other persons arising out or connected with the Customer’s use of the Company’s facilities.
(v) The Company requires hired equipment to be insured against physical loss or damage for its full replacement value from the time it leaves the Company’s premises until it is returned. Regardless of whether it is the Company or the Customer which effects such insurance, The Customer must make full disclosure of all material circumstances affecting such insurance. The Customer must bear in mind that Insurers may include in the Policy conditions designed to exclude from cover the consequences of failure to take reasonable precautions for the safety of equipment. In these circumstances, for example, to leave valuable equipment in unattended vehicle whether locked or otherwise may well be regarded by Insurers as sufficient to exclude liability under the policy.
5. The Company is willing to negotiate a variation of these Conditions at the request of the Customer. No variation is effective unless set out in a form which complies with Clause 1. of these Conditions.
“B”
1. The Company enters into all agreements with the Customer solely on the terms of these Conditions and no representation or warranty collateral or otherwise shall bind the Company and no statement made by any other representative by or on behalf of the Company shall vary these Conditions unless such representation, warranty or statement shall be made in writing and signed by a Director of the Company and shall be stated to be made specifically in pursuance of this Clause 1. of these Conditions. The Company shall not be bound by any conditions of business of the Customer unless such conditions are expressly accepted by the Company by statement made in writing, signed by a Director and stated to be made specifically in pursuance of this Clause 1. as aforesaid. Where there is any variance between the Customer’s conditions and these Conditions, these Conditions shall prevail.
2. In so far as any exclusion, limitations or modification of liability of indemnity hereinafter appears, the Company contracts on behalf of itself, its Directors, Servants and Agents and the same shall inure to the benefit not only of the Company but also of its Directors, Servants and Agents.
3. (i) Where in these Conditions the liability of the Company in respect of any loss or damage is excluded or modified in any way, the Company does not intend or seek to purport thereby to exclude, restrict or modify its liability for the death of or personal injury to any person resulting from negligence as defined in Section 1. of the Unfair Contract Terms Act 1977 and these Conditions shall have effect accordingly.
(ii) Nothing in these Conditions is intended to exclude, restrict or modify liability on the part of the Company for any breach of the obligations arising from Section 12 of the Sale Of Goods Act 1979 or section 8 of the Supply of Goods Implied Terms Act 1973 and these conditions shall have effect accordingly.
4. (i) All equipment and materials are entrusted to the Company and all equipment and materials and services are supplied by the Company entirely at the Customer’s risk. Except as provided in Clauses 6 and 7 below (and subject to Clause 3 above) the Company shall not in any circumstances be liable for loss or damage of any kind, however caused, even where such loss or damage shall have been caused or contributed to by the negligence of the Company.
(ii) Without prejudice to the generality of the foregoing subclause (i) of this clause where at the request of the Customer the Company supplies the services of a technician or other person to the Customer, such technician or other person shall for the purpose of any liabilities to third parties or loss or damage sustained by the Customer or by the Company or by any such technician or other person be deemed to be the servant of the Customer and the said services shall be deemed to be rendered by the Customer and (subject to clause 3 above) the Company shall not be liable for loss or damage of any kind, however caused, even where such loss or damage shall have been caused or contributed to by the negligence of the Company.
(iii) Time is not of the essence of any contract with the Customer and the Company shall not be liable for any delays in the supply of equipment, materials and services by it, or any losses whatsoever due to any such delays howsoever caused.
5. Where the Customer insures its materials and its work and operations against loss, damage or liability caused by or arising out of or in connection with equipment, materials or services supplied by the Company or any contract with the Company, the Customer shall inform insurers of these Conditions and shall ensure that its policy is endorsed to the effect that there shall be no recourse against the Company.
6. All equipment and materials supplied by the Company shall be examined and checked and subjected to appropriate tests by or under the supervision of the Customer before being taken into use and if found to be defective or deficient will be replaced or defects and deficiencies remedied by the Company without additional charge, but in no circumstances shall the Company be liable for transportation charges or for any loss or damage of whatever kind however caused arising out of or in connection with the use or the inability to use equipment and materials supplied or agreed to be supplied.
7. (i) Subject to the provisions of subclause (ii) of this clause the Customer shall at all times keep the Company, its Directors, Servants and Agents effectively indemnified against all actions, proceedings, costs, charges, claims, expenses and demands whatsoever which may be made or brought against the Company, its Directors, Servants or Agents by any third party in respect of any alleged injury, loss, damage or expense arising out of or in connection with the equipment, materials or services supplied by the Company even where such injury, loss, damage or expense is caused wholly or in part by the negligence or breach of contract of the Company, its Directors, Servants or Agents.
(ii) Where actions, proceedings, costs, charges, claims, expenses and demands such as referred to in the foregoing subclause (i) of this clause, are in respect of death or personal injury caused wholly or in part by the negligence of the Company, its Directors, Servants or Agents or by breach of contract of the Company, neither the Company nor its Directors, Servants or Agents shall claim indemnity from the Customer in respect of such proportion of such actions, proceedings, costs, charges, claims, expenses, demands as shall be found to be due to their negligence or breach of contract as the case may be.
8. (i) The hire charge for equipment commences from whichever is the earlier of the time the equipment is made available to the Customer or leaves the Company’s premises and is terminated at the end of the agreed hire period or when the equipment is returned there or if damaged, repaired or if lost or damaged beyond repair, replaced, whichever is the later; provided that the amount of any additional hire charge payable as a direct result of accidental loss or damage to equipment shall not exceed 15 weeks rental.
(ii) Where equipment is delivered or collected by the Company such delivery or collection is at the Customer’s risk and expenses and the Customer shall be liable for physical loss and damage and delay to the equipment from the time the equipment leaves the Company’s premises until it is returned to the Company’s premises whether or not the equipment is being delivered or collected by the Company or is in the custody of the Company, its directors servants or agents.
(iii) The reduced rate for weekly hire of equipment is for any 7 consecutive days, additional part-week hire period will be charged at daily or weekly rates, whichever is the less.
9. (i) The Customer shall compensate the Company for any loss which the Company may suffer as a result of any cancellation or variation of any order for the supply of equipment, materials or services or failure to return any hired equipment to the Company’s premises at the termination of the agreed hire period in good condition, fair wear and tear excepted (subject however to the provisions of subclause (ii) of this clause) or for any breach by the Customer of these Conditions. The Customer shall pay to the Company the full replacement value of hired equipment not returned or the full cost of repairing any damage together with any additional hire charge calculated in accordance with the provisions of clause 8(i) of these conditions due to loss or damage. Where, in accordance with the provisions of clause 16 of these Conditions, the Company undertakes to effect insurance in respect of equipment supplied, the Customer’s liability under this clause will be reduced by the amount recoverable under such insurance.
(ii) Filters, ground glasses and similar items are supplied on the basis that any deterioration while in the Customer’s possession is the responsibility of the Customer and the Customer will be charged with replacement cost where any such deterioration occurs.
10. The Company shall at its own expense at all times during the hire period make any repair or supply such replacement of equipment as may be necessitated by ordinary wear and tear provided that the Customer returns any equipment needing attention to the Company’s premises, carriage, insurance and handling charges including charges for the return journey of repaired or replacement equipment to be paid by the Customer. The Company will suspend the payment of hire charge during the period in which the equipment is out of service or until it is replaced as the case may be, but the Company shall in no circumstances be liable to the Customer for any loss or damage or expense incurred or sustained in connection with or resulting from the return or repair or replacement of such equipment.
11. Without the previous consent of the Company, hired equipment must not be used on any abnormal or hazardous assignment or taken out of the United Kingdom or taken from the ground other than on a regular scheduled flight by any airline recognized by I.A.T.A. Customers must keep hired equipment in their custody and must ensure that it is used in a skilful and proper manner by persons having the appropriate qualifications and experience and who are familiar with the type of equipment. Customers must protect hired equipment from the elements and take all reasonable precautions for its safety. Under no circumstances may Customers alter, add to, modify, adapt or misuse equipment hired to them by the Company or remove or disfigure any label or plate or identification or affix to, such equipment install thereon or insert therein any accessory, equipment or device incompatible with its proper use.
12. Customers must not sell, loan, assign, pledge, encumber, part with possession or suffer any lien to be created over hired equipment and the Company may terminate any hiring forthwith and without notice in the event of a Customer making any attempt to do so or doing any act or omitting to do any act which in the opinion of the Company jeopardizes the Company’s rights in the equipment or becoming the subject of any bankruptcy or liquidation proceedings or becoming insolvent or allowing any judgement or well founded claim to remain unsatisfied or failing to pay any hire charge or other sum due to the Company or failing to comply with these conditions.
13. The Customer agrees that a representative of the Company may enter upon any premises upon which hired equipment may be kept or reasonable believed to be kept for the purpose of its recovery at the termination of any hiring period, and where such equipment is on premises not occupied or under the control of the Customer, the Customer undertakes to secure for the Company permission to enter for such purposes and the Customer shall compensate the Company for any costs incurred in repossessing hired equipment.
14. The Customer agrees that any film, magnetic tape equipment, materials or property in the possession or custody of or handled by the Company may be subject to a lien for the general balance of the moneys from time to time due to the Company from the Customer however arising.
15. (i) Where the Company sells equipment or materials to the Customer, the risk therein shall pass to the Customer when the equipment or materials leave the Company’s premises, but equitable and beneficial ownership shall remain with the Company until full payment has been received (each order being considered as a whole) or until bonafide resale by the Customer at full market value, in which case the Company’s beneficial entitlement shall attach to the proceeds of resale or the claim for such proceeds.
(ii) Should the equipment or materials become constituents of or attached to or be converted into other products while subject to the Company’s equitable and beneficial ownership, the Company shall have an equitable and beneficial ownership in the other products as if they were solely and simply the equipment or materials and accordingly subclause (i) in this clause shall so far as appropriate apply to such other products.
16. (i) The Customer 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. Such insurance may at the option of the Customer be effected either by the Customer or by the Company on the Customer’s behalf. Where the Customer effects insurance the Customer 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. Particulars of replacement values will be supplied by the Company on request. Any insurance arranged by the Customer shall be in terms not less favourable than the terms of the Company’s insurance policy, copies of which may be obtained on request from the Company.
(ii) Where the Customer does not effect its own insurance, the Customer shall notify the Company prior to hired equipment leaving the Company’s premises and the Company will effect insurance corresponding to the terms of insurance set out in the summary on the Customer’s behalf and request. Full details of the cover provided and the terms, exceptions and conditions of the policy shall be made available by the Company at the Customer’s request. It must be noted that the Customer is required to pay the first £250.00 of any loss and that while the cover which the Company can effect represents the maximum cover available on a general basis under present conditions, the Customer will nevertheless remain liable for additional hire charges and for all risks of loss or damage (including for example war risks) without limitations in accordance with these Conditions. A charge will be made by the Company to the Customer in respect of such insurance. The Customer undertakes to make full disclosure of all material circumstances affecting such insurance (for example overseas or hazardous or abnormal use or use which may expose equipment to the elements or use involving non-scheduled aviation) and undertakes not to do or omit to do anything which would have the effect of invalidating such insurance. Any such disclosures must be made or confirmed by letter sent to the Company by recorded delivery to reach it in sufficient time for underwriters to be consulted.
17. The Customer acknowledges that all equipment is subject to copyright retained by the Company and that no attempt should be made to infringe or threaten to infringe the copyright aforesaid. Any such action by the Customer may result in the institution of legal proceedings on behalf of the Company.
18. No acceptance of the return or repossession of the equipment nor the granting of any indulgence by the Company shall constitute a waiver by the Company of any of its rights under these Conditions.
19. All accounts are rendered for immediate settlement. Where credit is granted by the Company payment must be made within 30 days from the date of the invoice. Interest of 1.5% per month will be payable on all accounts not settled within 30 days from the date of the invoice, such interest to be calculated from the date of the invoice.
20. When the Company supplies the services of technicians and other personnel, such services are supplied, subject to the provisions of any relevant union agreement and contract of service and the Customer shall observe and perform the same.
21. Any advice, instructions, guidance, representation or statement in connection with or in relation to the nature, use and application of any equipment, materials or services supplied by the Company given or made by any Director or by any Servant or Agent of the Company or by any Technician whose services are supplied to the Customer is given or made only on the condition that the Company shall in no circumstances be liable therefore or for loss or damage of any kind resulting therefrom, however caused. No recommendation or nomination by the Company of any person whose services the Customer engages shall in any circumstances render the Company its Directors, Servants or Agents liable for any loss or damage of any kind resulting therefrom or connected therewith however caused.
22. Products manufactured by A&C LTD do NOT fall within the present scope of the WEEE Directive 2002/96/EC as they are “Non Obligated Products”. Purchasers of equipment from A&C LTD are responsible for the safe disposal of the equipment at the end of its use. The final user shall finance the costs of its collection, treatment, recovery and environmentally sound disposal.
23. These Conditions shall be governed by and interpreted according to English Law.