Soundbite Productions Limited -Terms and Conditions
In these terms: "SP" means Soundbite Productions Ltd; "Client" means the legal entity accepting SP's quotation for the supply of Equipment or Services or whose order for Equipment or Services is accepted by SP or the party otherwise commissioning the Services in each case as named on SP's invoice; "Equipment" shall mean all and each item of equipment referred to in this Agreement (defined in clause 2.1 below) to be supplied by SP and all additions, alterations and replacements to that Equipment; "Services" shall mean the installation, operation and removal of the Equipment and/or other services as described in this Agreement; "Dry Hire" shall mean the hire of Equipment without the supply of operational personnel, with either SP or Client arranging transit; "Total Event Solution" shall mean the provision of both Equipment and Services; "Fees" shall mean SP's charges for provision of Equipment and/or Services; "Agreed Price" shall mean the Fees minus any deposit; "Event Date" shall mean the day(s) upon which the Equipment and/or Services are required; "Working Day" means any day other than Saturdays and Sundays and "Writing" shall include electronic mail.
2. Provision of Equipment and Services
2.1. SP provides for either Dry Hire or Total Event Solution
2.2. SP shall provide the Equipment on hire and (if applicable) the Services and the Client shall accept the Equipment and (if applicable) engage the Services of SP at the location(s) ("Venue") as described in SP’s hire agreement or most recent quotation for the event, either of which shall be subject to these terms of business ("Terms"). Such hire agreement, quotation and these Terms are collectively the "Agreement", which contain the entire agreement between SP and the Client and shall apply to the exclusion of all other terms and conditions and shall not be varied except as confirmed in writing by SP.
2.3. The Client acknowledges that the Equipment was selected by the Client as being suitable for its purpose (although SP may make recommendations upon the Client’s request) and the Client has not been induced to enter into this Agreement by any prior representation (whether innocently or negligently made) except as specifically contained in this Agreement.
2.4. Unless otherwise expressly agreed in writing by SP, all Equipment supplied by SP is supplied on hire in accordance with this Agreement and no title to or any ownership interest in the Equipment shall pass to the Client or any third party.
2.5. SP will use reasonable efforts to ensure the Equipment is in good working order on delivery and of satisfactory quality and will provide the Services using reasonable care and skill and in accordance with this Agreement.
3. Order Acceptance and Cancellation
3.1. No order or booking made by the Client shall be deemed accepted unless and until SP has issued a hire agreement or quotation, either of which is signed on behalf of SP or unless SP in its discretion waives any such requirement.
3.2. The Client shall be responsible for ensuring the accuracy of any order but SP reserves the right to make changes in the manner of performance of Services to comply with health and safety and other applicable legal requirements.
3.3. If the Client should cancel or terminate this Agreement (except with SP’s written consent) i) more than 14 days in advance of the Event Date then SP is entitled to retain up to 20% of the Agreed Price; ii) within 14 days (inclusive) of the Event Date then SP is entitled to retain up to 50% of the Agreed Price, iii) within 7 days (inclusive) of the Event Date then SP is entitled to retain up to 100% of the Agreed Price, and then only on terms that the Client indemnifies and keeps indemnified SP in full against all third party loss (including, without limitation, SP’s loss of profit and reimbursement of all costs) incurred prior to or as a result of cancellation or termination of this Agreement.
4.1. SP’s charges for provision of Equipment and/or Services shall be as stated in the Agreement. Any extra Equipment or Services later required will be chargeable in addition. It is at SP’s discretion to require a deposit. The Client shall be liable for continuing Equipment rental Fees if Equipment is lost stolen damaged or destroyed, until its repair or replacement, unless such damage or loss be a direct result of the actions of SP’s personal; and, in the case of a Dry Hire, if Equipment is returned late by the Client, until date of its actual return to SP.
4.2. In the case of Dry Hire, Equipment shall be returned late by the Client if returned after the date and time specified in the Agreement or, in the absence of a specified date, returned after 12:00pm two days after the Event Date. In such an event the Client is liable for both the continuing Equipment rental Fees at 4.1 and for any third part costs incurred by SP and claims arising against SP as a result of being unable to re-hire the same Equipment to a third party customer under a separate agreement dated before the Event Date.
4.3. The Client shall pay Fees, notwithstanding that performance may not have taken place, to be received by SP in cleared funds on or before the date(s) specified for payment in the Agreement or, if none, on or before 3 working days prior to the Event Date. It is a condition that each payment due under this Agreement is paid on time without any deduction, set-off or counterclaim. Any discounts quoted or agreed may be forfeited at SP's discretion if payment is received after the due date.
4.4. If the Client fails to pay any sum on the due date then, without limiting any other right or remedy, SP may: cancel or suspend provision of Services and Equipment to the Client under this Agreement; apply any payment made by the Client (notwithstanding any express instruction by Client) towards the discharge of any sums due to SP under this Agreement or any other agreement between the parties; and/or charge Client interest (both before and after judgement) on the amount unpaid at the rate of 8% above the base rate of the Bank of England calculated on a daily basis until payment in full together with all costs, charges and expenses reasonably incurred by SP (including legal fees) in recovering overdue amounts.
4.5. SP may, at any time before performance, increase its Fees to reflect any matter apparent on subsequent site survey, any increase in cost due to any factor beyond the control of SP or change or delay caused by the Client. SP will provide timely notice to Client of any such increase. To the extent this Agreement has not been performed (but not otherwise), if the Client, following consultation with SP, does not accept the increase and SP does not waive it, the Client may cancel this Agreement by written notice given within 5 working days of notice of increase (but not less than 3 working days prior to commencement of Equipment hire or Services), whereupon the Client shall forthwith settle all Fees incurred up to cancellation and indemnify SP in full against all other costs, charges and expenses incurred by SP prior to or as a result of cancellation.
5. Risk and Insurance
5.1. The Equipment shall be at the risk of the Client from the time of delivery at the Venue or, if earlier, delivery to Client's carrier or possession, until its return to SP's premises or, if earlier, possession is taken by SP's carrier.
5.2. The Client shall at its own expense insure Equipment with an insurance company of repute (naming SP as a loss payee): against all loss or damage (whether or not the Client's or SP's fault) in an amount equal to its replacement cost new; and against liability for any continuing Fees under Clause 4.1 until earlier of: return of Equipment to SP in good working order and condition (fair wear and tear excepted) or (if not capable of economic repair) its replacement with equivalent new equipment; or receipt by SP of payment in full of its replacement cost new and all other sums due hereunder.
5.3. The Client hereby irrevocably authorises SP in name and on behalf of the Client (but at the Client’s cost) to make any claims under the insurance in respect of loss of or damage to Equipment; to settle or compromise such claims; and to receive and give good discharge to insurers for any moneys payable. The Client shall not do or allow to be done any act or thing whereby insurance of Equipment may be invalidated.
5.4. If Equipment is lost or damaged, the Client shall notify SP forthwith, assist in making appropriate claims under such insurance and not without SP's consent settle or compromise any claim.
5.5. The Client will on request at any time produce to SP the insurance policy and receipt for current premium. If the Client fails to keep Equipment insured to SP's satisfaction or to produce policy or receipt or if SP so agrees in writing, SP may insure Equipment, in consideration of which the Client will pay SP further sum equal to 12.5% of SP’s charges (before any discount) for relevant Equipment or Services.
5.6. SP accepts no responsibility for loss or damage to any equipment or materials of the Client or any third party, which SP may agree to store or transport, and any such equipment or materials shall at all times be at the Client's risk.
6. Health and Safety
6.1. The Client shall take all reasonable steps to safeguard the health, safety and welfare of SP’s personnel while at the Venue, to safeguard the Equipment from theft, loss, damage or destruction and to give SP adequate notice of any unusual risks. Without prejudice to the foregoing, the Client acknowledges that SP shall not be obliged to continue supply of Equipment or Services (and may take down all or any Equipment previously installed) where, in SP's reasonable opinion, the installation poses a material risk to health and safety or to the Equipment.
6.2. Where a support structure is supplied by the Client, the Client shall ensure that the surface on which the Equipment and structure will be installed will be stable under load and that the structure will be fit for the purpose and will comply with all health and safety and other relevant regulations. The Client shall provide SP on request with copies of certificates of compliance verifying adequacy of Client's structure. Equipment dimensions and weights and representational drawings of structures are available on request from SP but are approximate and representational only and do not obviate the need for the Client to obtain appropriate professional advice.
6.3. The Client shall at its cost conduct all necessary risk assessments of the Venue and provide all personal protective equipment to SP’s personnel to enable them to provide the Services in a safe environment.
7. Client’s Undertakings
The Client undertakes to SP that the Client shall:
7.1. grant or procure access for SP to and from the Venue at such times as SP may reasonably require to discharge its obligations;
7.2. where applicable, provide free of charge within a reasonable distance of the operating position of the Equipment at the Venue: a video feed of the relevant format; an uninterrupted power supply terminated in an appropriate connection; and such other facilities as SP may reasonably require;
7.3. where SP's Services are dependent on provision of equipment or services by the Client or its contractor, ensure that all such equipment and services are provided on time when required; the equipment is in good working order, of adequate quality and specification; and services are provided by persons of adequate competence and experience using reasonable care and skill;
7.4. obtain all necessary licences and consents relating to the Venue and the use of Venue for the purpose the Equipment and/or Services are provided for, and communication or use by SP of live or pre-recorded material;
7.5. if transit of Equipment is arranged by Client, arrange any necessary customs clearances (in both ports where the Equipment is exported and imported), comply with all applicable import/export regulations and pay all related duties;
7.6. (except in case of a Dry Hire) not permit the Equipment to be operated other than by SP personnel nor interfere with the Equipment;
7.7. in event of Equipment breakdown or malfunction, not attempt or arrange any repair without SP's prior written authorisation;
7.8. not to sell, sub-let or otherwise dispose of or part with Equipment or any interest therein or do or permit to be done any act or thing which may prejudice or jeopardise SP's rights in the Equipment but to keep Equipment in its or SP's possession and control free from lien, charge or encumbrance so that Equipment shall at all times remain property of SP or its legal owner;
7.9. to permit or procure for SP or its agents access to any premises to inspect or remove Equipment;
7.10. to notify SP in writing of any change in Client's contact details and Venue and forthwith upon request to inform SP of the location of Equipment;
7.11. to comply with all applicable legal requirements when carrying out its obligations under this Agreement;
7.12. (notwithstanding termination of this Agreement) to indemnify SP and its respective officers, employees, agents and contractors (together the “Indemnified Persons”) and keep the Indemnified Persons fully and effectively indemnified against all liabilities whatsoever arising out of the operation and use of Equipmentand any breach by the Client of this Agreement (including without limitation: loss, damage or injury caused by any negligent act or omission or misconduct of the Client, its officers, employees, agents or sub-contractors or any claim that any such use or communication of any material infringes any patent, copyright, trade mark, registered design, design right or other intellectual property right of any third party) and against all costs, claims, demands, expenses and liabilities incurred by the Indemnified Persons in connection therewith provided such indemnity shall not extend to liability for the Indemnified Persons’ negligence.
8. Additional Client Undertakings (Dry Hire Only)
The Client undertakes during the continuance of this Agreement and until return of Equipment to SP:
8.1. to check Equipment before use, to notify SP in writing forthwith of any repair or maintenance required to Equipment and not to permit such repair or maintenance other than by SP or with its authority;
8.2. to ensure Equipment is only used in a proper manner without risk to health and safety and not contrary to any law or for any purpose for which Equipment is not designed or reasonably suited; and not to make any modification to Equipment, open the outer case (unless required in normal use) or remove any notices or serial numbers on the Equipment.
8.3. to return the Equipment to SP on or before the specified date in the Agreement.
8.4. to return the Equipment in the same condition and repair as when it was received by the Client, excepting daily wear and tear.
9. Exclusion and Limitation of Liability
9.1. The Client acknowledges that electronic equipment may suffer breakdown or malfunction from time to time without fault and that any consequences to the Client of breach of this Agreement by SP may be disproportionate to SP's Fees. Therefore, the Client agrees that SP’s entire liability to the Client in respect of this Agreement and any breach or negligent act or omission (including liability for acts or omissions of SP's officers, employees, agents and sub-contractors) shall be limited as follows:
9.1.1. except as provided in this Agreement, all conditions, warranties and representations concerning the Services and Equipment, their state, quality, description, fitness for purpose or otherwise are excluded to the fullest extent permitted by law;
9.1.2. SP's liability in respect of each event or series of connected events shall not exceed the total Fees received by SP except that in the case of recorded material, SP's liability shall be limited to the cost of replacing blank media only and in the case of loss of or damage to physical property caused by SP’s negligence, SP's liability shall be limited to the direct and reasonable cost of replacing or repairing that property;
9.1.3. SP will not be liable for any loss, damage or expense caused by any interruption or loss of use of Equipment, increased cost of working, delay, loss of profit or goodwill, special, consequential or indirect damage however caused, even if reasonably foreseeable or SP was advised of the risk of its occurrence;
9.1.4. The Client shall give SP reasonable details of any claim in writing without delay and no later than 45 days after occurrence of the matter giving rise to the claim;
9.1.5. nothing in this Agreement shall limit or exclude SP's liability in respect of death or personal injury resulting from SP's negligence.
9.2. SP shall not be liable to the Client by reason of any delay or failure in performing SP's obligations due to any cause beyond SP’s reasonable control including, without limitation, fire, flood, material adverse weather conditions (when SP shall be entitled not to install or, if installed, may take down all or any of the Equipment), interruption of power supply, war, act of terrorism or civil disturbance, industrial action or trade dispute or blockade, legal or governmental restriction or embargo (collectively “Force Majeure”). In the event of Force Majeure, if the Equipment has been installed at the Venue, the Client shall be liable to pay the Fees in full but otherwise the provisions of clause 3.3 shall apply.
In addition to other provisions herein allowing termination or cancellation of this Agreement, this Agreement may be terminated under the following circumstances.
10.1. This Agreement shall forthwith terminate without notice if the Client: (being an individual) dies or is subject to a bankruptcy order, presentation of a bankruptcy petition or other interim procedure; or (being a limited company) enters into compulsory or voluntary liquidation or has a receiver appointed or a petition presented for its winding up or a winding up order is made against it; or has any distress, execution or other legal process made in respect of the Client's property; or if anything analogous to the foregoing under the laws of any jurisdiction occurs in relation to the Client.
10.2. SP may terminate this Agreement forthwith by notice without liability to the Client if: the Client fails to pay in full any sum owing to SP on its due date for payment; the Client commits a breach of any other provision of this Agreement and (if a breach capable of being remedied) fails to remedy such breach within 7 days after notice requiring the same; or performance by SP is prevented by Force Majeure; or SP or Client is unable to obtain insurance for Equipment and SP's personnel on terms (including insurance premium) to SP's satisfaction.
10.3. Upon termination, all sums due under this Agreement shall become immediately payable by the Client and, in the case of a Dry Hire, the Client shall no longer be in possession of Equipment with SP's consent and (without prejudice to the Client’s obligations and other rights and remedies of SP) the Client shall at the Client's expense return Equipment to SP in good working condition (fair wear and tear excepted) and in default SP may forthwith without notice repossess Equipment and all costs and expenses (including without limitation, any legal costs and expenses) incurred by SP in locating, repossessing or restoring Equipment shall be payable by Client.
10.4. Termination or cancellation shall not limit any other right or remedy of either party against the other under this Agreement or at law and all sums then owing to SP by Client shall become immediately due and payable.
11.1. Each party shall treat all information obtained from the other pursuant to this Agreement as confidential.
11.2. Any computer software or program(s) placed on Equipment storage medium (e.g. hard drives) will be deleted or uninstalled by SP within a reasonable time after the Event Date.
12.1. If the Client is more than one person, they shall be both jointly and severally liable.
12.2. No person other than SP and the Client shall have any rights under or to enforce this Agreement. Neither party shall assign or otherwise transfer any of its rights or obligations under this Agreement except that SP may sub-contract all or any of its obligations to a competent third party without the approval of the Client.
12.3. Any typographical or clerical error or omission in documents issued by SP may be corrected without liability on part of SP.
12.4. Delay shall not prevent SP enforcing any provision of this Agreement. Any waiver of a breach of this Agreement shall not operate as a waiver of a later breach of the same or any other provision.
12.5 Both parties warrant their authority to enter into this Agreement and have obtained all necessary approvals to do so.
12.6 These Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.
12.7. If any provision of this Agreement is held to be invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected.
12.8. Headings in this Agreement are included for convenience only and shall not affect interpretation.
12.9. This Agreement 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.