In these terms: “Optimum Av” means Optimum Av Limited; “the Hirer” means the company/individual accepting Optimum Av’s quotation for the supply of Equipment or Services or the party otherwise commissioning the Services in each case as named on Optimum Av’s invoice; “Equipment” means each individual item of equipment referred to in this agreement to be supplied by Optimum Av and all additions, alterations and replacements to that Equipment; “Minimum Period” means the number of days set out in this agreement commencing on the date of delivery of the Equipment and/or Services and shall continue thereafter until terminated by written notice from either party of not less than half the Minimum Period or 30 days (whichever is the shorter) expiring at the end of the Minimum Period or any time thereafter. Such termination shall be subject to the Hirer giving up possession of the Equipment and/or Services to Optimum Av on the termination date and ensuring all Rentals due are paid up to the termination date; “Rental” means Optimum Av’s charges for provision of Equipment and/or Services; “Services” means the installation, operation and removal of the Equipment and/or other services as described in this agreement; “Simple Hire” means the hire of Equipment without Services; and “writing” shall include electronic mail;
2 Provision of Equipment and Services
2.1 Optimum Av shall provide and the Hirer shall accept the Equipment and engage the Services of Optimum Av at the location(s) (“Venue”) as described in this agreement. This agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that in entering into this agreement it has not relied on and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement.
2.2 No warranty express or implied is given by Optimum Av as to the fitness of the Equipment for the specific purpose of the Hirer.
2.3 The Equipment is and shall remain throughout the duration of this agreement the sole property of Optimum Av and the Hirer shall not sell, pledge, hire or otherwise deal with or part with possession of the Equipment or any part thereof. The entire risk of loss or damage to the Equipment from any occurrence whatsoever shall be assumed by the Hirer on commencement of this agreement and the Hirer shall give Optimum Av written notice of any loss or damage within three days of its occurrence and shall reimburse Optimum Av in respect of any such loss or damage within 14 days. In the case of loss, theft or late return of Equipment, the Hirer will be held responsible for all Rentals at agreed rates until the Equipment is either returned to Optimum Av or in the case of loss or theft, Optimum Av is reimbursed in full by the Hirer or the Hirer’s insurance company.
2.4 Optimum Av will use reasonable efforts to ensure 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 The Hirer must confirm any new orders by returning by fax, post or email a sales order containing all the relevant Rental details and costings. Amendments or changes to orders (including cancellations) must be notified to Optimum Av in writing and must be acknowledged in writing by an authorised employee of Optimum Av. Any changes made verbally and not confirmed in writing are unofficial and void.
3.2 The Hirer shall be responsible for ensuring the accuracy of any order but Optimum Av reserves the right to make changes in the manner of performance of the Services to comply with health and safety and other applicable legal requirements.
3.3 Should the Hirer wish to cancel the rental agreement prior to delivery for any reason after an e-mailed, faxed or posted order has been received by Optimum Av, the Hirer must notify Optimum Av in writing and the following cancellation charges are payable within 14 days of the cancellation date:
i) Between 29 days and 6 weeks (inclusive) prior to dispatch
= 50% of Total Invoice Price.
ii) Between 15 days and 4 weeks (inclusive) prior to dispatch
= 75% of Total Invoice Price.
iii) Up to 2 weeks prior to dispatch = 100% of Total Invoice Price
3.4 The Hirer shall indemnify Optimum Av against any (consequential or otherwise) loss, damage or any injury to persons or property occurring in connection with any of the Equipment as a result of the use thereof whilst in the Hirer’s control provided that Optimum Av do not seek to limit their liability for fraud, fraudulent misrepresentation or death or personal injury caused by negligence of Optimum Av or its employees.
4.1 Optimum Av’s charges for provision of Equipment and/or Services shall be as stated in this agreement. Any extra Equipment or Services later required will be chargeable in addition. If Equipment is lost, stolen, damaged or destroyed, the Hirer shall be liable for continuing Rentals at the same rate as provided in this agreement until its repair or replacement and, in the case of a Simple Hire or where the Hirer arranges transit, if Equipment is returned late, until the date of its actual return to Optimum Av.
4.2 The Rental set out overleaf shall be payable in advance on the payment terms. The first payment must be made and funds cleared either prior to delivery or on the date of delivery of the Equipment and or service to the Hirer, or strictly net within thirty days of the invoice date as specified by Smart AV. The stipulation as to the time of payment of the Rental shall be of the essence of this agreement. Optimum Av may charge and the Hirer shall pay interest at the rate of 3% per annum above the Finance House Base Rate for the time being on all sums which, from time to time, may be due from the Hirer to Optimum Av hereunder and for the time being unpaid, such interest being calculated from the due date until payment is received.
4.3 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 Optimum Av’s discretion if payment is received after the due date.
4.4 Optimum Av may, at any time before performance, increase the Rental to reflect any matter apparent on subsequent site survey, any increase in cost due to any factor beyond the control of Optimum Av or change or delay caused by the Hirer. Optimum Av will provide timely notice to the Hirer of any such increase. To the extent this agreement has not been performed (but not otherwise), if the Hirer following consultation with Optimum Av does not accept the increase and Optimum Av does not waive it, the Hirer may cancel this agreement by written notice given within 5 working days of notice of increase (but not less that 3 working days prior to commencement of Equipment hire or Services) provided that the Hirer indemnifies Optimum Av in full against all costs, charges and expenses incurred by Optimum Av prior to or as a result of cancellation.
5 Risk and Insurance
5.1 By taking delivery of the Equipment the Hirer shall be deemed to have examined the Equipment and to have found it to be in good order and condition and reasonably fit for its purpose. If the Hirer fails to give notice of rejection at the time of delivery, it shall be deemed to have accepted the Equipment. All costs due to Equipment being returned damaged or faulty will be charged to the Hirer; this includes flight cases, packaging, stands, brackets, remote controls, cables, software, media, drivers and any other software or hardware included with the rental, (whether rental charged or considered gratis). An administration and inspection charge will be levied on the Hirer dependent on time and costs incurred in addition to any repair charges, transport costs, costs of hiring in equipment to relace the Equipment whilst out of service and cost of lost business due to not being able to fulfil Optimum Av’s contracts.
5.2 The Hirer shall keep the Equipment insured to its full replacement value against loss, damage, fire, theft, terrorism and other such risks as are normally insured by a reasonably prudent person with an insurance company of good repute. The Hirer shall inform the insurers that the Equipment is the property of Optimum Av and shall ensure that the interest of Optimum Av is endorsed on the policy and shall abide by all terms and conditions of the insurance policy at all times. Upon demand the Hirer shall produce to Optimum Av the policy of insurance and receipt for the last premium.
5.3 The Hirer hereby irrevocably authorises Optimum Av in name and on behalf of the Hirer 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 Hirer 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 Hirer shall notify Optimum Av forthwith, assist in making appropriate claims under such insurance and not without Optimum Av’s consent settle or compromise any claim.
5.5 As an alternative to condition 5.2 and only in relation to loss, damage, fire, theft and terrorism, the Hirer may make a payment to Optimum Av at a percentage of the list rental price. The rate is 15% of the total contract value (exclusive of VAT) and is subject to the following conditions: i) Insurance option must be agreed and paid for prior to the start of the agreement; ii) Excludes Equipment left unattended on an unsecured site or motor vehicle; iii) Excluding theft unless following violent and forcible entry or exit from Hirer’s premises; iv) Excludes laptops all accessories and consumables.
5.6 Optimum Av accepts no responsibility for loss or damage to any equipment or materials of the Hirer or any third party, which Optimum Av may agree to store or transport, and any such equipment or materials shall at all times be at the Hirer’s risk.
6 Health and Safety
6.1 The Hirer shall take all reasonable steps to safeguard the health, safety and welfare of Optimum Av’s personnel while at the Venue, to safeguard the Equipment from theft, loss or damage and to give Optimum Av adequate notice of any unusual risks. Without prejudice to the foregoing, the Hirer acknowledges that Optimum Av shall not be obliged to continue supply of Equipment or Services (and may take down all or any Equipment previously installed) where, in Optimum Av’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 Hirer, the Hirer 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 (taking account of prevailing wind speeds) and will comply with all heath and safety and other relevant regulations. The Hirer shall provide Optimum Av on request with copies of certificates of compliance and structural engineering calculations verifying adequacy of the Hirer’s structure. Equipment dimensions and weights and representational drawings of structures are available on request from Optimum Av but are approximate and representational only and do not obviate the need for the Hirer to obtain appropriate professional advice.
7 The Hirer’s Undertakings
The Hirer undertakes to Optimum Av that the Hirer shall:
7.1 grant or procure access for authorised employees and contractors of Optimum Av to and from the Venue at such times as Optimum Av 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 Optimum Av may reasonably require.
7.3 where Optimum Av’s Services are dependant on provision of equipment or services by the Hirer or its contractor, ensure that all such equipment and services are provided on time when required; the equipment is of adequate quality and specification and in good working order; and the services are provided by persons of adequate competence and experience using reasonable care and skill;
7.4 the Hirer shall obtain and maintain all licences, including software licences, required for the operation of the Equipment, Services and the Venue.
7.5 if transit of Equipment is arranged by the Hirer, arrange any necessary customs clearances, comply with all applicable import/export regulations and pay all related duties;
7.6 (except in case of a Simple Hire) not permit the Equipment to be operated other than by Optimum Av personnel nor open the outer cases or otherwise interfere with the Equipment;
7.7 the Equipment may be serviced only by Optimum Av who shall provide such service during normal business hours and access to the Equipment shall be granted by the Hirer. Charges for such service will be for out of pocket expenses only except in the case of damage due to accident, misuse or neglect which will be payable by the Hirer in full on demand. If such service so requires, Optimum Av shall be at liberty to remove the Equipment or any part of it for such length of time as may be necessary and to replace it with equipment of similar (but not necessarily identical) type, which shall be held by the Hirer on these terms and conditions. Unless agreed otherwise in writing, the Hirer will not be entitled to any abatement or refund of Rental between the dates of removal and replacement or substitution.
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 Optimum Av’s rights in the Equipment but to keep Equipment in its or Optimum Av’s possession and control free from lien, charge or encumbrance so that Equipment shall at all times remain the property of Optimum Av or its legal owner;
7.9 Optimum Av shall be entitled to access the Equipment at all reasonable times upon reasonable notice for the purpose of inspecting, servicing, repairing or removing the Equipment;
7.10 throughout the duration of this agreement the Equipment shall remain at the Hirer’s delivery address specified in this agreement.
7.11 (notwithstanding termination of this agreement) indemnify Optimum Av and keep Optimum Av fully and effectively indemnified against all liabilities whatsoever arising out of the operation and use of Equipment and any breach by the Hirer of this agreement (including without limitation loss, damage or injury caused by any negligent act or omission or wilful misconduct of the Hirer, its 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 Optimum Av in connection therewith provided such indemnity shall not extend to liability for Optimum Av's negligence.
8 Additional Hirer Undertakings (Simple Hire Only)
The Hirer undertakes during the continuance of this agreement and until return of the Equipment to Optimum AV:
8.1 to notify Optimum Av forthwith of any repair or maintenance required to Equipment and not to permit such repair or maintenance other than by Optimum Av 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 The Hirer shall be responsible for keeping the Equipment in good and substantial repair and proper working order (fair wear and tear excepted) throughout the duration of this agreement. Optimum Av will be entitled to visually inspect the Equipment on return for obvious major damage but also reserves the right to thoroughly inspect and test the Equipment within 3 working days of return to Optimum Av operational headquarters. Optimum Av also reserves the right to extend this period due to any unforeseen operational disruption or if the Equipment needs independent third party expert examination and assessment. All costs due to Equipment being returned damaged or faulty will be charged to the Hirer. This includes flight cases, packaging, stands, brackets, remote controls, cables, software, media, drivers and any other software or hardware included with the Rental, (whether Rental charged or considered gratis). An administration and inspection charge will be levied on the Hirer dependent on time and costs incurred in addition to any repair charges, transport costs, costs of hiring in equipment to replace the Equipment whilst out of service, and cost of lost business due to not being able to fulfil existing contracts.
8.4 The Hirer shall collect and return the Equipment from Optimum Av’s premises unless otherwise agreed in advance.
9 Exclusion and Limitation of Liability
9.1 The Hirer acknowledges that electronic equipment may suffer breakdown or malfunction from time to time without fault and that consequences to the Hirer of breach of this agreement by Optimum Av may be disproportionate to Smart AV’s Rentals. Therefore, the Hirer agrees Optimum Av’s entire liability to the Hirer in respect of this agreement and any breach or negligent act or omission (including liability for acts or omissions of Optimum Av’s 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 Without prejudice to clause 3.4, Optimum Av’s total liability arising under or in connection with this agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to the hire cost of the individual item of the Equipment, and in the case of loss of or damage to physical property caused by Optimum Av’s negligence, Optimum Av’s liability shall be limited to £1,000,000;
9.1.3 Optimum Av 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 Optimum Av was advised of the risk of its occurrence;
9.1.4 The Hirer shall give Optimum Av reasonable details of any claim in writing without delay and no later than 90 days of occurrence of the matter giving rise to the claim;
9.1.5 The Hirer agrees to fully indemnify Optimum Av against any loss or damage (including legal expenses on an indemnity basis) suffered by Optimum Av as a result of any 3rd party claim (whether successful or not) relating to the use of software on the Equipment while in the Hirer’s control.
9.2 Nothing in this agreement shall limit or exclude Optimum Av’s liability in respect of death or personal injury resulting from Optimum Av’s negligence.
9.3 No liability shall attach to Optimum Av for any delay in delivery of the Equipment or performance hereunder due to unforeseen circumstances or due to causes beyond its control including but not limited to acts of nature, acts of government, labour disputes, delays in transport and delays in delivery. Delivery dates quoted are intended as estimates only although every endeavour will be made to adhere to them. Optimum Av shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by the Hirer’s failure to provide Optimum Av with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment. Any charges incurred by Optimum Av as a result of the Hirer’s failure as above, shall be payable by the Hirer.
10.1 If the Hirer becomes insolvent or unable to meet its debts as they fall due or makes any voluntary arrangement with its creditors or becomes subject to an administration order or any proceedings for its receivership, liquidation or the like under any jurisdiction, Optimum Av may terminate this agreement forthwith.
10.2 In the event that the Hirer commits any breach of the terms of this agreement Optimum Av shall be entitled to terminate the agreement forthwith by written notice. Upon such termination the Hirer shall cease to be in possession of the Equipment with the consent of Optimum Av. If Optimum Av terminate the agreement pursuant to this clause, prior to the end of the Minimum Period the outstanding Rental for the Minimum Period shall become payable immediately by the Hirer.
10.3 Upon termination, all sums due under this agreement shall become immediately payable by the Hirer and, in the case of a Simple Hire, the Hirer shall no longer be in possession of Equipment with Optimum Av’s consent and (without prejudice to the Hirer’s obligations and other rights and remedies of Optimum Av) the Hirer shall at the Hirer’s expense return Equipment to Smart AV in good working condition (fair wear and tear excepted) and in default at any time after termination of this agreement by whatever means Optimum Av may without notice enter upon premises belonging to or in the occupation or control of the Hirer to retake possession of the Equipment.
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 Optimum Av by the Hirer shall become immediately due and payable.
Each party shall treat as it does its own confidential information all information obtained from the other pursuant to this agreement which is marked “confidential” or the equivalent or has the necessary quality of confidence about it.
12.1 If the Hirer is more than one person, they shall be liable both jointly and severally.
12.2 The Contracts (Right of Third Parties) Act 1999 shall not apply this Agreement and no person other than Optimum Av and the Hirer shall have any rights under or to enforce this agreement.
12.3 The Hirer shall not be entitled to transfer or assign its obligations under this agreement.
12.4 Any typographical or clerical error or omission in documents issued by Optimum Av may be corrected without liability on the part of Optimum Av.
12.5 Any notice under this agreement shall be in writing and may be served by hand, pre-paid first class post or airmail, electronic mail or facsimile to its address or facsimile number set out in this agreement or such other address as is notified for the purpose. A confirming copy of any notice served by electronic mail or facsimile shall be sent by post within 24 hours of transmission.
12.6 Delay shall not prevent Optimum Av enforcing any provision of this agreement. Any waiver of a breach of this agreement shall not be operate as a waiver of a later breach of the same or any other provision.
12.7 Should any of these terms and conditions (or part thereof) be held to be unenforceable or invalid the validity of the remaining terms and conditions (or part thereof) will remain unaffected and shall be in full force and effect.
12.8 This agreement shall be governed and construed in accordance with English Law. The parties agree to submit to the exclusive jurisdiction of the English Courts.
12.9 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representative).