CONDITIONS OF BUSINESS (SALE)
In these conditions:
“Agreement” means the contract between the Company and the Customer for the supply of Company Facilities in accordance with these Conditions and the Order.
“Commencement Date” has the meaning set out in Clause 2.2.
“Company” means Blitz Communications Limited(company number 02595358) whose registered office is at Silverstone Drive, Gallagher Business Park, Coventry. England CV6 6PA.
“Company Equipment” means the equipment to be hired in accordance with these conditions as specified in the Order.
“Company Facilities” means each and all of Company Equipment, Company Personnel and all and any other materials and/or services provided by the Company to the Customer at the Customer’s request and as set out in the Order or as otherwise agreed in writing by the Company.
“Company Personnel” means any personnel supplied by the Company to the Customer at the Customer’s request and as set out in the Order.
“Conditions” means these terms and conditions as amended from time to time in accordance with Clause 15.1.
“Customer” means the company, person or firm whose order is accepted by the Company.
“Delivery Address” means the address stated in the Order for delivery or such other address agreed by the parties in writing.
“Hire Period” means the period for which the Company Facilities are made available to the Customer subject to the Conditions.
“Order” means the Customer’s order for the supply of Company Facilities as set out in the Company’s quotation or a written purchase order.
“Return Address” means the Company’s office at Unit 100, Centennial Avenue, Elstree, Hertfordshire WD6 3SA or such other address as may be agreed between the parties in writing.
“Specification” means any specification for the Company Facilities (including any relevant plans or drawings) that is provided by the Company to the Customer or produced by the Company and agreed in writing by the Customer.
These Conditions shall apply to all Orders for the hire and/or provision of Company Facilities placed with the Company by the Customer. Acceptance by the Company of any Order is acceptance subject to these conditions which shall prevail over any other terms and conditions which are contained or referred to in the Customer’s order or in correspondence or elsewhere or implied by trade, custom, practice or course of dealing, unless such other terms and conditions are specifically accepted in writing and signed by an authorised representative of the Company.
2. ORDERS AND DELIVERY
Any Order constitutes an offer by the Customer to hire the Company Facilities from the Company in accordance with these Conditions.
No Order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company’s authorised representative, at which point and on which date the Agreement shall come into existence (“Commencement Date”).
Whilst every endeavour shall be made to supply the Company Facilities as ordered the Company reserves the right to substitute other Company Facilities of similar specification.
Any quotation is only valid for a period of 10 days from its date of issue, unless otherwise stated in the Company’s quotation.
Any dates quoted for delivery of the Company Facilities are approximate only and the Company shall not be liable for delay in delivery of the Company Facilities howsoever caused.
Company Equipment will not be left at any Delivery Address unless the person receiving them acknowledges receipt on behalf of the Customer by signing a delivery note in respect thereof. It is the Customer’s responsibility to ensure that a representative of the Customer is available at the Delivery Address at the time of delivery to accept and acknowledge receipt of delivery. The signature on a delivery note of the Customer or the person accepting delivery of the Company Equipment (who shall be deemed to be the Customer’s agent for that purpose) shall be conclusive evidence that the Company Equipment has been received and the Company shall be under no liability to the Customer whatsoever for any alleged shortage or incorrect items.
3. PAYMENT AND CHARGES
The charge in respect of the Company Facilities (“Hire Charge”) will commence on the date on which the Company Facilities are made available to the Customer or the Company Facilities leave the Company premises (whichever is the earlier) until the later of;
• the end of the Hire Period;
• ·or where the hire includes the supply of Company Equipment when the Company Equipment is returned to the Company and in the case of Company Personnel the Company Personnel leave the Delivery Address, whichever shall be the later.
Specifications in respect of Company Facilities, prices and rates are as specified in the Order, which may be amended subject to the prior agreement of the parties in writing.
The Hire Charge shall be as stated in the Order. In addition to the Hire Charge, the Company shall be entitled to charge Customer for any days or part thereof for which the Company Equipment has not been returned to the Company at the Return Address and/or for additional time worked by the Company Personnel.
The Company shall be entitled to charge the Customer for any expenses reasonably incurred by the Company Personnel, including but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses unless otherwise stated in the Order.
Payment of the Hire Charge and any other monies payable to the Company in respect of the Company Facilities shall be due and payable in full and cleared funds 30 days from the date of invoice. All amounts payable by the Customer under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time, which shall be payable in addition by the Customer thereon.
If the Customer fails to make payment in accordance with this Clause 3 then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to charge the Customer interest (both before and after any judgment) on the amount unpaid at the rate of 4% above National Westminster Bank plc base rate from time to time, until payment in full is made in cleared funds (a part of the month being treated as a full month for the purpose of calculating interest). Interest shall become due and payable notwithstanding the fact that a portion of the account shall be subject to any dispute or query.
The Customer shall pay all amounts due under the Agreement in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
4. DELIVERY AND PERFORMANCE
All Company Facilities are supplied to the Customer by the Company and all equipment and materials are entrusted to the Customer by the Company entirely at the Customer’s risk. Except as provided in Clause 5 below and subject always to Clause 6 below, 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.
Without prejudice to Clause 4.1 above, any and all Company Personnel shall for the purpose of any liabilities to third parties or loss or damage sustained by the Customer or by the Company be deemed to be the servant and under the control of the Customer and such service deemed to be rendered by the Customer and, subject to Clause 6 below, the Company shall not be liable for loss or damage of any kind howsoever caused in connection therewith.
The Company Equipment is delivered or collected by the Company at the Customer’s risk and expense and accordingly the Customer is liable for physical loss and damage and delay to the Company Equipment from the time the Company Equipment leaves the Company’s premises until it is returned to the Return Address whether or not it is being delivered or collected by the Company or its agents.
Without prejudice to Clause 4.3 where the Company Equipment is delivered to the Customer and/or collected from the Customer, the Customer shall pay the Company the costs and expenses of such delivery and collection in addition to the Hire Charge.
The Customer shall:-
co-operate with the Company in all matters relating to the Company Facilities;
provide the Company, its employees, agents, consultants and subcontractors with unrestricted access to the premises, office accommodation and other facilities where the Company Facilities are to be used or located from time to time as reasonably required by the Company;
provide the Company with such information and materials as the Company may reasonably require to supply the Company Facilities and ensure that such information is accurate in all material respects;
obtain and maintain all necessary licences, permissions and consents which may be required for the use of the Company Facilities.
In the event that the Company’s performance of any of its obligations in respect of the Company Facilities is prevented or delayed by any act or omission by the Customer (or any third party) or failure by the Customer to perform any relevant obligation (“Customer Default”):
the Company shall without limiting its other rights or remedies have the right to suspend performance of the Company Facilities until the Customer remedies the Customer Default and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations pursuant to the Agreement; and
the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
5. CANCELLATIONS, VARIATIONS, LOSS OR DETERIORATION
The Customer shall compensate the Company for any costs, expenses and/or loss which the Company may suffer as a result of any cancellation or variation of any Order for the supply of Company Facilities or failing to return any Company Equipment to the Return Address at the termination of the agreed Hire Period in good condition, fair wear and tear excepted (subject always to the provisions of Clause 5.2 below) or for any breach by the Customer of these Conditions. In the event of non-return of hired Company Equipment and/or loss (which shall include damage beyond economic repair as determined by the Company) or damage to the Company Equipment, the Customer shall pay to the Company the full replacement value of the same or the full cost of repairing any damage together with any additional Hire Charge calculated in accordance with the provisions of Clause 3 of these Conditions for any period that the Company Equipment is being repaired or until replaced (as appropriate). The Company shall be entitled to charge for additional personnel that may be required to meet any obligations to remove the Company Equipment from a location where a Customer or third party has prevented or delayed the Company from removing the Company Equipment.
For the avoidance of doubt, the Agreement may not be cancelled without the prior agreement in writing of the Company. In the event that the Customer cancels the Agreement, Company will be entitled to a cancellation fee as follows:
· For cancellations up to 14 days or less from the start date of the Hire Period: 100% of the Hire Charge
· For cancellations between 14 and 30 days prior to the Hire Period: 80% of the Hire Charge
· For cancellations between 30 and 120 days prior to the Hire Period: the cost of all services performed and expenses reasonably incurred by Company, including but not limited to any third party obligations and pre-production time incurred by Company.
Bulbs, screens, filters, projection lamps, video tubes and the like items and any other items that may be specified as consumables in the Order 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 the replacement costs where any such deterioration occurs.
The Company shall, at its own expense, at all times during the agreed Hire Period effect any repair or supply such replacement of Company Equipment as may be necessitated by ordinary wear and tear provided that the Customer returns any such Company Equipment needing attention to the Return Address, carriage, insurance and handling charges (including, without limitation, charges for the return journey of repaired or replacement equipment) to be paid by the Customer and provided further that the Company will suspend the payment of the Hire Charge during the period during which the Company 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 Company Equipment.
6. WARRANTIES AND LIABILITIES
Except as expressly provided in these Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
Nothing in these Conditions shall limit or exclude the Company’s liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
fraud or fraudulent misrepresentation.
Subject to Clause 6.2:-
the Company shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of data, loss of use, loss of opportunity, loss of business, loss or damage to goodwill, or for any indirect or consequential loss arising under or in connection with the Agreement;
the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed 100% of the Hire Charges paid by the Customer to the Company under the Agreement.
Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
Company shall not be liable for any delays in the supply of Company Facilities by it, or any losses whatsoever due to any such delays howsoever caused.
Customer shall examine,check and appropriately test all Company Equipment supplied by the Company before utilising the same. Provided any deficiency or defect is notified in writing to the Company within 24 hours of the Company Equipment being delivered or collected (as the case may be) the Company will replace or remedy (as appropriate) such deficient Company Equipment and/or defects without additional charge. For the avoidance of doubt, this shall be the Customer’s sole right and remedy in connection with the supply of defective Company Equipment.
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 death alleged injury, loss, damage or expense arising out of or in connection with the use of the Company Facilities even where such injury, loss, damage or expense is caused wholly or in part by the negligence or breach of contract of the Company PROVIDED HOWEVER that where same are in respect of death or personal injury caused wholly or in part by negligence of the Company or by breach of contract of the Company neither the Company nor its agents shall claim indemnity from the customer in respect of such proportion of such actions, proceedings, costs, charges, claims, expenses or demands as shall be found to be due to their negligence or breach of contract as the case may be.
Unless prior to the commencement of the period of the Hire Period the Company has received from the Customer’s insurers a declaration in the form acceptable to the Company that the Customer has arranged insurance to the satisfaction of the Company, or if at any time the Company receives notification of the lapsing or variation of the Customer’s said insurance or fails to receive prompt and sufficient confirmation that such insurance remains in effect, then the Company shall be entitled (but not obliged) either to arrange immediate insurance of the Company Equipment for its full replacement value against all damage or loss consequential or otherwise (including without prejudice to the generality of the foregoing payment of monies due to the Company pursuant to these conditions) and also for public liability against claims made by third parties arising from use or misuse of the Company Equipment to a level the Company shall in its absolute discretion deem necessary, and be reimbursed for any additional costs of the insurance, or alternatively, to rescind this agreement with the Customer without any liability therefor on behalf of the Company but without prejudice to any other rights or remedies the Company may have against the Customer.
The Customer will make full disclosure of all material circumstances affecting insurance taken out, and if required by the Company both procure that the interest of the Company is noted in respect of any such policy and that the insurers are instructed to notify the Company direct of any cancellation or repudiation in respect of same.
The Customer undertakes not to do or omit to do anything which would have the effect of invalidating any insurance, or cover effected (whether by the Company or the Customer) in pursuance of this Clause.
9. SAFEGUARD OF EQUIPMENT
The Company Equipment shall at all times remain the property of the Company. The Customer shall not be entitled to:
sell, loan, assign, pledge, encumber, part with possessions of or suffer any lien or other encumbrance to be created over Company Equipment;
The Customer shall keep the Company Equipment in its custody and ensure that it is used in a skillful and proper manner by persons having the appropriate qualifications and experience and who are familiar with the type of equipment and/or services involved; the Customer will also ensure that under no circumstances shall there be any alteration or addition to, modification, adaptation or mis-use of the Company Equipment hired to them pursuant to this Agreement.
Customer makes any voluntary arrangements with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or;
an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer or;
Customer ceases or threatens to cease to carry on business or;
Customer is in breach of any of the terms of these Conditions, including (without limitation) failure to pay any monies pursuant hereto or;
Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly
then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the hiring forthwith and without notice.
The Agreement may be terminated by the Customer at any time through the giving of notice to the Company. Notwithstanding the notice, the Customer will be fully liable for the full rental amount for the duration of the Hire Period or such later date as the Company Equipment shall be returned to the Company or made available for collection by the Company at the Return Address.
On termination of this Agreement for any reason, the Customer shall immediately cease to be entitled to use the Company Equipment and the Customer shall immediately return the Company Equipment to the Company or make the same available for collection by the Company as directed by the Company. The Customer agrees with the Company that a representative of the Company may enter upon any premises where the Company Equipment is kept or reasonably believed to be kept for the purposes of recovering the same at the termination of any Hire Period and in relation to premises not occupied or under control of the Customer, the Customer undertakes to procure that permission is obtained for the Company to enter for such purposes and the Customer shall compensate the Company for any costs incurred in re-possessing the Company Facilities.
The provisions of Clauses 3, 4.1, 5.1, 6, 7, 9, 10, 11, 12, 13, 14, 17 and 18 shall survive notwithstanding termination of this Agreement for any reason
11. Force Majeure
Company shall not be liable to the Customer as a result of any delay or failure to perform any of its obligations under the Agreement or these Conditions as a result of any circumstances beyond the reasonable control of the Company, which shall include but not be limited to war, fire, natural catastrophe, extreme weather conditions. If the Company is prevented from providing any of the Company Facilities for more than 30 days, the Company shall, without limiting its other rights or remedies, have the right to terminate the Agreement immediately by giving written notice to the Customer.
The Customer shall not, without the prior written consent of the Company assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement.
The Company may assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement without the prior written consent of the Customer.
If any provisions of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be effected thereby.14. THIRD PARTY RIGHTS
A person who is not a party to the Agreement shall not have any rights under or in connection with it.
Any variation to these Conditions shall only be binding when agreed in writing and signed by the Company.
Any notice required to be given hereunder should be given in writing and may be given personally or may be sent by first class post to the recipient at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to these provisions to the party giving the notice or by fax and any notice given by post shall be deemed to be served on the second working day after the same shall have been posted and if given by fax shall be deemed to have been served at the time of transmission if sent during working hours and at the commencement of the next working day following transmission if not sent during business hours.
No waiver by the Company of any breach of these Conditions by the Customer shall be considered as a waiver of any subsequent breach of the same or other provision.
18. LAW & JURISDICTION
These Conditions and the Agreement shall be governed by the Laws of England and the Company and the Customer submit to the jurisdiction of the English Courts.