(hereinafter referred to as The “terms of business”).
These terms of business should be carefully read before you hire any equipment from CineArk ltd. By hiring equipment or using the equipment, you agree to be bound by the terms and conditions set forth below. If you do not wish to be bound by these terms of business, pease do not hire any equipment or use any equipment owned by CineArk ltd.
‘Company’ means CineArk ltd, a company registered in England and wales, having company address: Unit 20 Brook Industrial Estate, Hayes, Middlesex, UB4 0JZ and whose company registration number is: 9877457 and its successors and assigns.
‘Equipment’ means any equipment owned by the company which shall include (without limitation) film equipment, that shall be hired by the the customer in accordance with these terms of business, including all cases and packing materials that come with the equipment.
‘Customer’ means a person, firm, corporation or organisation hiring any equipment from the company whose details are on the quotation.
‘Premises’ means a building, vehicle, establishment owned by the company, its directors, employees, servants or agents.
‘Charge(s)’ means the charges agreed for the hire of the equipment, from the company as detailed in the quotation.
“Quotation” means a quotation provided by the company to the customer detailing the equipment to be hired by the customer and the charges.
The agreed hire period shall be stipulated in the Quotation. The Equipment remains the absolute property of the Company for the entire continuance of hire including transportation to and from the Company’s Premises and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of these Terms of Business). The Customer shall have no lien on the Equipment at any time whatsoever without the Company’s permission in writing.
All Charges commence at the time the Equipment leaves the Company’s Premises, or such date as stipulated in the Quotation and terminates when the Eqiupment is returned or at the end of the agreed hire period (whichever is the later) or when terminated under clause 4.2 (a), providing that the Equipment has been returned to the Company in the same condition it was in at the commencement of the hire (fair wear and tear excepted). In the event that the Equipment is lost, stolen, damaged or destroyed, the Charges shall continue to accrue until such time as either the Equipment is recovered and returned to the Company in the same condition it was in at the commencement of the hire, or replaced, or if damaged, the Equipment is repaired by the Customer at its sole expense and returned in full working order to the Company.
4.1 Payment must be made in full by the Customer within 30 days of the date of the invoice without any deduction. 4.2. If the Customer fails to make payment on the due date then, without prejudice to any other right or remedy the Company will be entitled to:
a) immediately terminate these Terms of Business for hire of Equipment or any contract or hire of any Equipment with the Customer; or
b) charge the Customer interest on the amount unpaid at a rate of 4% per annum over the Bank of England base rate from time to time or the rate specified in the Late Payment of Commercial Debt (Interest) Act 1988, as amended, whichever is the higher; or
c) claim reasonable compensation for debt recovery costs as specified in the Late Payment of Commercial Debt Regulations 2002 (or any amendment thereof) on each invoice.
4.2 All invoices shall be calculated by the Company and will be considered final and correct. The Company shall maintain in accordance with usual practice, accounts evidencing amounts owed to it by the Customer. Entries in those accounts shall be prima facie evidence of the existence and amount of the Customer’s obligations to pay the Charges.
5.1. The Customer acknowledges that the Company shall not be liable 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 Customer or its officers, employees, agents and contractors.
5.2. All risk of loss, theft, destruction or damage to the Equipment lies with the Customer from the time the Equipment leaves the Company’s Premises, or agents care, until returned to the Company’s order whether delivered or collected by or in the custody of the Company, its employee or agent. The Customer shall take good and proper care of the Equipment and ensure its use in a proper manner by persons with the knowledge and experience to operate it. Any advice or recommendations given by the Company, its employees or agents to the Customer, its employees or agents as to the use, set up or application of the Equipment is followed or acted upon entirely at the Customer’s own risk.
Any dates quoted for the delivery of the Equipment are approximate only and the Company shall not be liable for any delay in delivery or provision howsoever caused. It is the Customer’s responsibility to check that the Equipment is in good working order on receipt and matches the contents lists provided. The Customer must notify the Company as soon as practicable (but not later than 24 hours after recipt of Equipment) in writing of any missing items or defects capable of being ascertained on inspection. If the Customer does not notify the Company accordingly, it shall be conclusively presumed that the Equipment is complete and, so far as it is able to be ascertained on inspection, in good working order.
In addition to the Charges the Customer shall arrange their own “all risks” insurance in the joint names of the Company and the Customer in respect of the Equipment at the full replacement value plus any associated loss of rental income. It is an express term of these Terms of Business that if for any reason whatsoever the insurers of the Equipment refuse to settle any claim made in respect of the Equipment under such insurance policy the Customer shall be liable to pay forthwith to the Company the balance of such claim and until such sum is paid in full the Customer shall pay interest from 7 days after the date of the Company’s demand thereon on the same basis as if such sum was unpaid in that interest shall be payable to the Company upon the said sum at the rate of 2% per month or any part thereof.
8.1 The Customer shall during the term of these Terms of Business:
a) ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed;
b) make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Company. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Company immediately upon installation;
c) keep the Company fully informed of all material matters relating to the Equipment;
d) at all times keep the Equipment in the possession or control of the Customer and keep the Company informed of its location;
e) not, without the prior written consent of the Company, 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) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Company in the Equipment;
g) not use the Equipment for any unlawful purpose;
h) deliver up the Equipment at the end of the hire period or on the termination of these Terms of Business at such address as the Company requires; and
i) not do or permit to be done anything which could invalidate the insurances referred to in Clause 7.
The Customer shall compensate the Company at current replacement cost for all damages, missing items or deterioration through negligent use of the Equipment, or for any failure or delay in return to the Company of the Equipment, or for any consequential loss of hire.
10.1 Each party undertakes that it shall not at any time during these Terms of Business, and for a period of 5 years after termination of these Terms of Business, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party [or of any member of the group of companies to which the other party belongs], except as permitted by clause 10.2.
10.2 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 thiese Terms of Business. 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 10;
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under these Terms of Business.
11.1 The Company makes no warranty or representation to the Customer concerning the Equipment, its condition and/or the extent of its functions or purpose for which required, other than its ability to perform in the manner for which it was designed at the moment of departure from the Company’s Premises or areas designated as such. The Company will not be responsible for the failure of any non-rechargeable batteries supplied by the Company. Neither does the Company make any warranty concerning the abilities of any technicians or other personnel supplied by or through the Company, and the Customer shall be responsible for all such actions of such technicians and personnel whilst working for the Customer.
11.2 The Company’s liability for mechanical and/or electronic breakdown of its Equipment due to natural causes will be limited to an obligation to replace or repair the Equipment providing that the defective Equipment or part is returned to the Company at the place from which it was hired, with the costs of carriage, insurance and handling charges paid by the Customer. Alternatively, the Company may, at its discretion, pay the reasonable cost of the repair or, the hire cost of a replacement of the Equipment by a dealer approved by the Company. Any complaints or problems regarding the failure of Equipment must be notified in writing as soon as discovered by the Customer.
The Customer shall at all times keep the Company, its directors, employees, servants or agents indemnified against all actions, proceedings, costs (on an indemnity basis), charges, claims and demands or reimbursements for personal injury or damage to property caused by the negligence, mishandling, misuse of any Equipment or services or materials supplied by or through the Company, its directors, employees, servants, or agents, which may be made or brought by the Customer or any third party in relation to or in connection with Equipment, materials or services of technicians or any other services supplied by the Company and the Customer shall further indemnify and keep indemnified the Company, its directors, employees, servants or agents against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Customer to comply with these Terms of Business.
All dealings between the Customer and the Company will be based on these Terms of Business to the exclusion of all other terms and conditions. The Company shall not be bound by any conditions other than the foregoing. In the event of these Terms of Business being inconsistent with any conditions of the Customer, then these Terms of Business shall prevail.
If any provision or part-provision of these Terms of Business is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms of Business.
These Terms of Business may be modified at any time by the Company. Any modification will be notified to the Customer and will be effective one (1) month from the date of notification to the Customer.
16. Termination and Repossession: 16.1 Either party shall be entitled to immediately terminate these Terms of Businesson giving written notice to the other if:
a) That other party commits any material breach of these Terms of Business and, in the case of such a breach which is capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied (for the avoidance of doubt any late payment or failure to pay by the Customer any sums due shall be a material breach);
b) That other party makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or partnership) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or
c) An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of that other party; or
d) That other party ceases, or threatens to cease, to carry on business.
16.2 On termination the Customer shall pay to the Company all Charges, costs and expenses due under these Terms of Business.
16.3 Neither party shall have any right to claim for any loss or damage occasioned by such termination, which shall be without prejudice to any accrued rights and remedies of either party.
16.4 At the expiry of the hire period, or following termination of these Terms of Business for whatever reason, the Customer shall forthwith return the Equipment to the Company’s Premises in good working order and condition.
16.5 If the Customer fails to return the Equipment on the due date the Company may, without notice, re-take possession of the Equipment and for this purpose shall be entitled without notice, to enter into any premises occupied or controlled by the Customer.
This Terms of Business shall be governed and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.