TERMS AND CONDITIONS
1.1 The following definitions and rules of interpretation apply in these terms and conditions.
ATA Carnet: an international customs and temporary export-import document.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: the date that the Lessee takes Collection or Delivery of the Equipment.
Collection: the transfer of physical possession of the Equipment to the Lessee at the Site.
Delivery: the transfer of physical possession of the Equipment to the Lessee.
Equipment: the items of equipment listed in the Rental Agreement and Quotation Documents.
Lessee: The Lessee (or Client) is the entity to whom the hiring services are provided.
Lessor: Lens Flare TV Ltd, 126 Metroplex Business Park, Broadway, Salford, M50 2UW. Company No. 09940893.
Quotation Documents: a formal statement setting out the estimated cost for hire of the Equipment.
Site: the Lessor's premises at 126 Metroplex Business Park, Broadway, Salford, M50 2UW.
Rental Agreement: written agreement between the Lessor and Lessee containing a list of the Equipment.
Rental Payment: the payment made by or on behalf of Lessee for hire of the Equipment.
Rental Period: the period of hire as set out in clause 3 (Rental Period).
Total Loss: due to the Lessee's default the Equipment is, in the Lessor's reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax chargeable in the UK.
1.2 Clause and paragraph headings shall not affect the interpretation of these terms and conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.7 A reference to writing or written includes e-mail but not fax.
1.8 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.9 References to clauses are to the clauses of these terms and conditions.
2. Equipment hire
2.1 The Lessor shall hire the Equipment to the Lessee subject to these terms and conditions.
2.2 The Lessor shall not, other than in the exercise of its rights under these terms and conditions or applicable law, interfere with the Lessee's quiet possession of the Equipment.
3. Rental period
The Rental Period starts on the Commencement Date and will end on the return of the Equipment to the Site or unless the Rental Agreement is terminated earlier in accordance with these terms and conditions.
4. Rental payment
4.1 The Lessee shall pay the Rental Payment to the Lessor within 30 days of the date of the invoice. The Rental Payment shall be paid in Pound Sterling and shall be made by BACS or card payment.
4.2 The Rental Payment is subject to VAT.
4.3 All amounts due under the Rental Agreement or Quotation Documents shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.4 The Lessor can request payment in full prior to the start of the Rental Period for any new customers.
4.5 The Lessor can charge a reasonable cancellation fee for any orders where a cross-hire fee has been incurred by the Lessor.
4.6 The Lessor can charge an additional daily rate charge for any Equipment returned after the stated date of return.
4.7 If the Lessee fails to make a payment due to the Lessor under these terms and conditions within 30 days of the date of the invoice, then, without limiting the Lessor’s remedies under clause 10 (Termination), the Lessee shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.1 Delivery of the Equipment shall be made by the Lessor at the request of the Lessee. The Lessor shall use reasonable endeavours to effect Delivery by the date and time agreed between the parties. Title and risk shall transfer in accordance with clause 6 (Title, risk and insurance) of these terms and conditions.
5.2 Delivery is free of charge within a 10 mile radius of the Site. Delivery outside this radius is subject to an additional charge.
6. Title, risk and insurance
6.1 The Equipment shall at all times remain the property of the Lessor, and the Lessee shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these terms and conditions).
6.2 The risk of loss, theft, accident or damage of the Equipment shall pass to the Lessee on Delivery or Collection. The Equipment shall remain at the sole risk of the Lessee during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Lessee (Risk Period) until such time as the Equipment is redelivered to the Lessor. During the Rental Period and the Risk Period, the Lessee shall, at its own expense, obtain and maintain the following insurances:
(a) insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Lessor may from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Lessor may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
(c) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Lessor may from time to time consider reasonably necessary and advise to the Lessee.
6.3 All insurance policies procured by the Lessee shall be endorsed to provide the Lessor with at least 20 Business Days' prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the Lessor's request name the Lessor on the policies as a loss payee in relation to any claim relating to the Equipment. The Lessee shall be responsible for paying any deductibles due on any claims under such insurance policies.
6.4 The Lessee shall give immediate written notice to the Lessor in the event of any loss, theft, accident or damage to the Equipment arising out of or in connection with the Lessee's possession or use of the Equipment.
6.5 The Lessor, where possible, will aim to provide replacement Equipment in the event of any loss, theft, accident or damage subject to an additional Rental Payment if the loss, theft, accident or damage is due to the Lessee.
6.6 If the Lessee fails to effect or maintain any of the insurances required under these terms and conditions, the Lessor shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Lessee or collect the Equipment.
6.7 The Lessee shall on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Lessor and proof of premium payment to the Lessor to confirm the insurance arrangements.
7. Lessee's responsibilities
7.1 The Lessee shall during the term of the Rental Agreement:
(a) ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
(b) take such steps (including compliance with all safety and usage instructions provided by the Lessor) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
(c) maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted).
(d) make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Lessor unless the component(s) is/are replaced immediately.
(e) not, without the prior written consent of the Lessor, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(f) ensure all appropriate ATA Carnet documentation is in order, if the Lessee intends to take the Equipment to an ATA Carnet Country;
(g) if the Equipment is so confiscated, seized or taken, the Lessee shall notify the Lessor and the Lessee shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Lessor on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(h) not use the Equipment for any unlawful purpose;
(i) ensure that at all times the Equipment remains identifiable as being the Lessor's property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
(j) deliver up the Equipment at the end of the Rental Period or on earlier termination of the Rental Agreement at such address as the Lessor requires, or if necessary allow the Lessor or its representatives access to any premises where the Equipment is located for the purpose of removing the Equipment; and
(k) not do or permit to be done anything which could invalidate the insurances referred to in clause 6 (Title, risk and insurance).
7.2 The Lessee acknowledges that the Lessor shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Lessee or its officers, employees, agents and contractors, and the Lessee undertakes to indemnify the Lessor on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Lessee to comply with these terms and conditions.
8.1 The Lessor warrants that the Equipment shall substantially conform to its specification (as made available by the Lessor), be of satisfactory quality and fit for any purpose held out by the Lessor. The Lessor shall use reasonable endeavours to replace any Equipment in the event of loss, theft, damage or destruction, subject to a minor potential charge, provided that:
(a) the Lessee notifies the Lessor of any loss, theft, damage or destruction in writing within 5 Business Days of the loss, theft, damage or destruction occurring [or of becoming aware of the loss, theft, damage or destruction;
(b) the Lessor is permitted to make a full examination of the damage or destruction; and
(c) the loss, theft, damage or destruction did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Lessor's authorised personnel.
9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with these terms and conditions including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Subject to clause 9.3, the Lessor's total liability to the Lessee (including any liability for the acts or omissions of its employees, agents and subcontractors) shall not exceed £15,000.
9.3 Nothing in these terms and conditions limit any liability which cannot legally be limited including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973.
9.4 These Terms and Conditions set forth the full extent of the Lessor's obligations and liabilities in respect of the Equipment and its hiring to the Lessee. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Lessor except as specifically stated in these terms and conditions. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within these terms and conditions, whether by statute, common law or otherwise, is expressly excluded.
9.5 Subject to clause 9.3, the Lessor shall not be liable under these terms and conditions for any:
(a) loss of profit;
(b) loss of revenue;
(c) loss of business;
(d) loss of data in the event that the data becomes corrupt, damaged, or fails to function properly in anyway;
(e) loss of data in the event it becomes erased or cards are formatted from memory cards;
in each case, however caused, even if foreseeable.
10.1 Without affecting any other right or remedy available to it, the Lessor may terminate these terms and conditions with immediate effect by giving written notice to the Lessee if:
(a) the Lessee fails to pay the invoice within 30 days from the date of the invoice;
(b) the Lessee commits a material breach of any other term of these Terms and Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(c) the Lessee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or being a company or limited liability partnership is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or being a partnership has any partner to whom any of the foregoing apply;
(d) the Lessee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Lessee (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Lessee with one or more other companies or the solvent reconstruction of the Lessee;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Lessee (being a company);
(g) the holder of a qualifying floating charge over the assets of the Lessee (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the Lessee or a receiver is appointed over all or any of the assets of the Lessee;
(i) the Lessee being an individual is the subject of a bankruptcy petition, application or order;
(j) a creditor or encumbrancer of the Lessee attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Lessee's assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the Lessee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1(c) to clause 10.1(j) (inclusive);
(l) the Lessee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
10.2 These terms and conditions shall automatically terminate if a Total Loss occurs in relation to the Equipment.
11. Consequences of termination
11.1 Upon termination of these terms and conditions, however caused:
(a) the Lessor's consent to the Lessee's possession of the Equipment shall terminate and the Lessor may, by its authorised representatives, without notice and at the Lessee's expense, retake possession of the Equipment and may enter the premises at which the Equipment is located; and
(b) without prejudice to any other rights or remedies of the Lessee, the Lessee shall pay to the Lessor on demand:
(i) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.7;
(ii) any costs and expenses incurred by the Lessor in recovering the Equipment and/or in collecting any sums due under these Terms and Conditions (including any storage, insurance, repair, transport, legal and remarketing costs).
11.2 Termination or expiry of these terms and conditions shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of these terms and conditions which existed at or before the date of termination or expiry.
12. Force majeure
Neither party shall be in breach of these Terms and Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Terms and Conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party.
13. Confidential information
13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 13.2.
13.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 13; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under these terms and conditions
14. Assignment and other dealings
These terms and conditions are personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under these terms and conditions.
15. Entire agreement
These terms and conditions constitute the entire terms and conditions between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
No variation of these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17. No partnership or agency
17.1 Nothing in these terms and conditions are intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18. Third party rights
Unless it expressly states otherwise, these terms and conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms and conditions.
19. Dispute resolution
If any dispute arises in connection with this agreement, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR.
20.1 Any notice given to a party under or in connection with these terms and conditions shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
20.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt;
(b) if sent by pre-paid first-class post or next working day delivery service, at on the Business Day after posting;
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause19.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
20.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
21. Data protection
21.1 The Lessor and the Lessee both agree to comply with all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
21.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Lessee is the Controller and the Lessor is the Processor.
No failure or delay by a party to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
23. Rights and remedies
Except as expressly provided in these terms and conditions, the rights and remedies provided under these terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of these terms and conditions becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the terms and conditions.
25. Governing law
These terms and conditions and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms and conditions or its subject matter or formation.