CONDITIONS OF BUSINESS
In these Conditions of Business unless the context otherwise requires:
1.1 “DO” means Digital Orchard Group Limited, a UK company with its registered office at 2 Hill Farm, Leavesden, Watford, WD25 7SD.
1.2 “The Customer” means the person (including his successors, personal representatives and permitted assignees) hiring Equipment or purchasing Goods and/or Services from DO.
1.3 “Equipment” means cinematography, photography equipment and all other related equipment and accessories owned or leased by DO hired by the Customer from DO.
- RENTAL FEE; TAXES
2.1 Rental Fee. The Customer shall pay DO a rental fee (the “Rental Fee”) being the amount payable for the rental of the Equipment to the Customer, in accordance with the Delivery Receipt (“Delivery Receipt”) [and the rates in the DO rental catalogue (the “Rental Catalogue”)] unless otherwise agreed by DO in writing as evidenced by the periodic invoices issued by DO to the Customer. DO reserves the right to alter the rates in the Rental Catalogue without notice to the Customer.
2.2 Calculation. The Rental Fee shall be calculated from Delivery until the Equipment is returned to DO’s place of business and is accepted by DO Staff (“Return”). In the event that the Equipment is not returned by 9:00am on the working day following the last day of the hiring period, the Customer shall be liable for additional fees at the full daily rental rates set out in the Rental Catalogue for each day until the Equipment is returned.
2.3 Payment. The Customer shall pay the Rental Fee in Pounds Sterling to DO, without abatement, deduction or set-off, no later than 30 days after the date of DO’s invoice to Customer. However, DO reserves the right to require payment in cash upon confirmation of order or Delivery if DO so notifies the Customer. Past due amounts shall bear interest at the rate of 1.5% per pay and the parties agree that such default interest is not a penalty but is a true measure of damages incurred by DO. In the event that the Customer fails to pay when due, the Customer shall be liable for all out-of-pocket costs incurred by DO in collecting such amounts, including but not limited to reasonable outside legal costs and disbursements on a solicitor-client basis.
2.4 Taxes. The Customer will be solely responsible for any and all taxes, transportation charges, duties, broker fees, bond, and all other costs arising out of the Customer’s hire, use or transportation of the Equipment or otherwise resulting from the customer’s hire of the Equipment.
2.5 Voided Payments. Any payment made by or on behalf of a Customer which is later voided by the application of any statutory provision shall be deemed not to discharge the Customer’s obligations to DO and, in such event the parties are to be restored to rights and obligations which each respectively would have had if the payment had not been made.
3.1 Delivery. The Customer shall be responsible for the collection and return of the Equipment except where prior alternate arrangements are made with DO. DO shall have absolute discretion as to the mode of delivery and the Customer shall, at all times bear the risk and the cost of delivery unless otherwise agreed by DO. With each Delivery, DO shall provide to the Customer a Delivery Receipt that shall itemise the Equipment delivered. Unless DO receives written notice to the contrary from the Customer within 24 hours of Delivery, the Delivery Receipt shall be considered conclusive evidence that the listed Equipment was delivered in good working order.
3.2 Return. The Customer shall return the Equipment at the Customer’s expense to DO’s place of business in the same condition as when received by the Customer, subject to reasonable wear and tear.
3.3 Use of Equipment. The Customer shall: (a) not use the Equipment for any purpose other than image capture, and related electrical distribution of the Customer’s project and related matters (b) not lend, sublet, pledge, or otherwise dispose of or encumber the Equipment, or permit anyone other than the Customer, persons under the Customer’s direction and control (having appropriate qualifications and experience), or DO, to have possession of, use, examine or evaluate the Equipment (c) not modify or disassemble the Equipment (d) take all reasonable precautions to avoid loss or damage to the Equipment during the period of hire; (e) advise DO of any fault in the Equipment, within 24 hours of Customer’s discovery of such fault (f) not, without the prior written consent of DO, use the Equipment on any abnormal or hazardous assignment or transport the Equipment from the ground other than on a regular scheduled flight by a reputable airline.
3.4 Recovery. The Customer acknowledges that DO may enter into or upon any such premises where the Equipment may be in order to remove the Equipment, without prejudice to the rights of DO to recover from the Customer any monies due hereunder or any damages for breach hereof and the Customer indemnifies DO in respect of any claims, damages or expenses arising out of any action taken under this clause.
3.6 Maintenance and Repairs. (a) Normal cleaning of Equipment and basic troubleshooting shall be done by Lessee at its cost and shall only be performed by persons who have been provided explicit maintenance and service instruction by DO. If the required repairs exceed Normal Cleaning and Maintenance, DO shall make such repairs, provided that Lessee returns such Equipment to DO’s Place of Business. (b) The cost of repairs or replacement resulting from reasonable wear and tear, or from any defect in the Equipment (the “DO Covered Repairs”) shall not be charged to the Customer, and, with respect to DO Covered Repairs. Repairs or replacement costs resulting from any other cause, including, without limitation, misuse, accident or abuse of the Equipment shall be charged to the Customer, including Repair Transport and Rent.
3.7 Ownership. The Customer’s rights in relation to the Equipment are as a renter only and nothing herein shall be construed as conveying to Customer any right, title or interest, other than a temporary leasehold interest, in or to any Equipment or in or to any other property of DO, including but not limited to, DO’s intellectual property. DO may, but shall not be required to, identify the Equipment to indicate DO’s ownership by nameplate or other means, and the Customer agrees not to remove or deface such identification.
- LOSS, DAMAGE, INSURANCE
4.1 Risk. The Equipment shall be at the Customer’s risk from Delivery until Return except that acceptance of Equipment by DO staff upon Return does not release the Customer from responsibility for loss or damage to Equipment pursuant to these Conditions of Business.
4.2 Loss. In the event that Equipment is lost, stolen, missing, destroyed, or damaged beyond repair while at the risk of the Customer, the Customer shall be liable for and agrees to compensate DO for the greater of replacement cost (without deduction for depreciation) or the insurance value prescribed on DO’s schedule of insurance values, which is available upon request and subject to update from time to time. Further, with respect to any lost, stolen, missing, destroyed or damaged equipment, the Customer agrees to compensate DO for the Rental Fee for the Equipment until the Equipment is repaired or replaced.
4.3 Customer Insurance. Customer shall, at its expense, obtain and maintain in full force and effect insurance in compliance with Section 4.4 covering any and all liability, claims, demands, actions, causes of action, loss, costs, damage and expenses arising out of or based upon the use or possession of the Equipment or the present or future fitness, quality, design, condition, repair, merchantability, functioning, performance or malfunctioning of the Equipment, or its material or workmanship, no matter how caused or occasioned, but excluding gross negligence or willful misconduct of DO, its officers, directors, employees, agents, or representatives. Such insurance shall be written by reputable insurance carriers maintaining an AM Best Rating of A- and financial size 5 and must include an extension to include hire charges incurred on lost or damaged Equipment whilst it is being replaced or repaired in accordance with Section 4.2. Customer’s insurers must be the primary insurers of the Equipment during the Term and coverage shall be written on a non-contributor basis. Prior to delivery of the Equipment, the Customer shall provide to DO valid certificates of insurance complying with Section 4.4. Customer shall provide DO at least 30 days prior notice of any proposed modification, alteration or cancellation of any such insurance. Customer agrees to inform its nominated insurer where any Equipment may be subjected to abnormal or hazardous conditions or possible damage by foreign materials such as salt, water, dust or sand so that full and appropriate insurance cover may be effected. Notwithstanding anything else in this Section 4.3, Customer shall remain primarily liable to DO pursuant to the provisions of Section 4.1 and 4.2 above, and DO may enforce its remedies hereunder directly against Customer without proceeding against the insurer.
(b) Minimum Requirements.
|Type of Coverage (*)||Limits||Wording Requirements|
Commercial General Liability Insurance
£100, 000 per occurrence
£500 000 aggregate
DO named as an additional insured
Foreign territory extension, if filming outside the country of the DO office issuing invoices for rental of the Equipment
Miscellaneous Equipment Floater
Equipment value, plus GBP 250,000
DO names as the loss payee
Replacement cost basis without deduction for depreciation
Loss of extension / continuation of hire
4.5 Loss Procedures. In the event of loss or damage to the Equipment of any kind the Customer shall: (a) immediately notify DO (and the Police where appropriate) and take all practicable steps towards discovery and recovery; (b) as soon as practicable, provide DO with a full written report of the circumstances of the loss or damage to DO and furnish DO with any particulars or evidence as may reasonably be required by DO.
- EXCLUSION OF WARRANTY
5.1 Exclusion of Warranty. DO MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, THE FITNESS, QUALITY, DESIGN, CONDITION, REPAIR, MERCHANTABILITY, FUNCTIONING, PERFORMANCE OR MALFUNCTIONING OF THE EQUIPMENT, OR OF ITS MATERIAL OR WORKMANSHIP. The Customer further acknowledges that it has determined the Equipment as specified on the Delivery Receipt will be fit for its purposes and that it has not relied on the skill or judgment of DO or any person purporting to act on its behalf in selecting such Equipment and that before taking delivery the Customer has checked the Equipment for completeness, correct functioning and suitability, including film testing of all cameras wherever practicable in a manner similar to that in which they will be used by the Customer on the production.
- LIMITATION OF LIABILITY & INDEMNITY
6.1 Limitation of Liability. DO’S OBLIGATIONS WITH RESPECT TO THE EQUIPMENT ARE LIMITED TO THE OBLIGATIONS PROVIDED FOR IN SECTIONS 3.1 AND 3.6 AND THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT DO (AND ANY MASTER LESSOR OF THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO TECHNOCRANE, S.R.O.) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, OR OTHER LOSSES RESULTING FROM THE FITNESS, QUALITY, DESIGN, CONDITION, REPAIR, MERCHANTABILITY, FUNCTIONING, PERFORMANCE OR MALFUNCTIONING OF THE EQUIPMENT, OR OF ITS MATERIAL OR WORKMANSHIP. The Customer expressly agrees to the additional terms set forth in Appendix A hereto.
6.2 Waiver & Indemnity. The Customer waives, releases and agrees to defend, indemnify and hold harmless DO, its affiliates and related companies and each of their respective officers, directors, employees, shareholders, agents, representatives, insurance carriers, successors, licensees, and assigns, and each of them, from any liability, claims, rights of subrogation, demands, actions, causes of action, losses, costs, damages and expenses (collectively, “Claims”) arising out of or based upon the Customer’s breach of the terms of these Conditions of Business, subrogation claims by the Customer’s insurers, or the Customer’s use, possession, operation, and transport of the Equipment, including, without limitation, the preparation and testing of the Equipment (whether or not the preparation and testing takes place on DO’s premises), other than Claims arising out of or based upon the gross negligence or willful misconduct of DO.
- DEFAULT & REMEDIES
7.1. Default. It shall constitute an event of default (“Default”) under these Conditions of Business: (a) if the Customer shall fail to pay the Rental Fee in accordance with these Conditions of Business, the Delivery Receipt and periodic invoices; (b) if the Customer shall do or permit any act or thing whereby DO’s rights in the Equipment may be prejudiced, or which constitutes illegal or improper use of the Equipment; (c) the Customer shall become insolvent or shall cease to conduct its business as a going concern, or shall apply for or consent to otherwise obtain the appointment of a receiver, trustee, administrator, liquidator or similar appointment to the Customer or assets of the Customer, or if proceedings are instituted under any applicable insolvency law; (d) if the Customer commits any breach of these Conditions of Business, the Delivery Receipt or the DO Credit Memorandum other than as referred to in (a), (b), or (c) above and such breach has not been cured within 2 business days from the date of DO’s written notice to the Customer of such breach.
7.2 Remedies. In the event of a Default, DO may: (a) demand immediate payment of all accrued and unpaid Rental Fees and any other amounts due and the Customer shall pay such amounts immediately upon such demand; (b) immediately terminate the Customer’s right of possession and use of the Equipment and the Customer shall immediately return the Equipment to DO, or DO may, at the Customer’s expense, enter into any premises where the Equipment may be located and repossess the Equipment. In addition, DO may pursue any other remedy available to DO at law or in equity, and each such right and remedy may be enforced concurrently with any other right or remedy.
8.1. Relationship of the Parties. Nothing contained in these Conditions of Business shall be construed to create a partnership between, or joint venture by, the parties, or to constitute either party the agent of the other party. The agreement between DO and the Customer is not for the benefit of any third party (except indemnities or insured’s under Sections 4 and 6) and shall not be deemed to give any right or remedy to any such party whether identified in these Conditions of Business or not.
8.2. Severability. If any provision of these Conditions of Business is illegal, void or unenforceable, such provision shall be severable, and shall not affect any other provision of these Conditions of Business, and shall be deemed to be modified to the minimum extent necessary to avoid the illegality. 8.3. Successors and Assigns. These Conditions of Business shall be binding upon each party and its respective parent companies, affiliate companies, subsidiary companies, successors and assigns, however, the Customer may not assign its rights without prior written consent by DO.
8.4. Attorneys’ Fees and Costs; Choice of Law and Jurisdiction. The prevailing party in any suit, legal proceeding, arbitration or other action brought arising in connection with these Conditions of Business shall be entitled to recover its reasonable outside attorneys’ fees and other expenses incurred in such proceeding or action, in addition to any other relief to which it may be entitled. These Conditions of Business shall be governed by, interpreted under, construed and enforced in accordance with the laws of England and subject to the exclusive jurisdiction of the courts of England.
8.5 Compliance with Laws. The Customer will, at all times, comply with all applicable laws, rules and regulations relating to the use, shipping, handling or transport of the Equipment including, but not limited to all environmental, occupational health and safety or other such laws, rules and regulations.
8.6 Waiver. Any failure by DO to insist upon strict performance by the Customer of any terms or conditions contained in this agreement shall not be taken to be a waiver thereof and no waiver by DO or one breach of any term or condition in this agreement, whether express or implied, shall operate as a waiver of another breach of the same or of any other terms or conditions in this agreement whether expressed or implied.
8.7. Notices. All notices under or in connection with these Conditions of Business shall be sent to the designated recipient at the respective address indicated (a) in the case of the Customer, in their account information, and (b) In the case of DO, at the address shown on the Delivery Receipt or invoice, to the attention of the Managing Director. All notices shall be in writing and shall be sent by mail, by reputable overnight courier service, or by facsimile with a hard copy via mail.