CARDINGTON STUDIOS LIMITED
TERMS OF TRADE FOR THE SUPPLY
OF STUDIO SPACE, EQUIPMENT, GOODS, FACILITIES AND SERVICES
In these terms the following expressions shall have the following meanings:
“Contract” the booking, the order, the hire or proposed hire of Studio Space, equipment, goods, facilities or services pursuant to an offer by the Customer and acceptance by the Company in accordance with these Terms;
“Contract Price” the amount payable by the Customer to the Company as detailed in the Contract Document;
“Contract Period” the period specified in the Contract Document;
“Contract Document” the Company document detailing the Customer, the Contract, the Contract Price, the Contract Period and any Special Conditions;
“Customer” the individual, firm or company as specified in the Contract Document to whom the Company is supplying the studio space, equipment, goods, services or facilities under the Contract;
“Company” Cardington Studios Limited;
“Dry Hire” the equipment, goods and facilities under the Contract hired to the Customer not under the control of the Company;
“Premises” any land, building and/or facility owned and/or controlled by the Company or any of its affiliated companies;
“Conditions” the Terms of Trade as detailed herein;
“Special Conditions” any amendments or additional conditions specified in the Contract Document which take precedence over these Terms of Trade.
The Company enters into all agreements with the Customer solely on the terms of these Conditions and no representation or warranty collateral or otherwise shall bind the Company and no statement made by any representative by or on behalf of the Company shall vary these conditions unless such representation warranty or statement shall be made in writing and signed by a director of the Company and shall be stated to be made specifically in pursuance of this clause 2 of these Conditions. The Company shall not be bound by any Conditions of business of the Customer unless such conditions are expressly accepted by the Company by a statement made in writing signed by a director and stated to be made specifically in pursuance of this clause 2 as aforesaid. Where there is any variance between the Customer's conditions and these Conditions, these Conditions shall prevail.
On receipt of a booking enquiry, the Company will submit to the Customer a quotation. Upon Acceptance by the Company of a Purchase Order from the Customer, a Contract for the agreed services will be signed by both the Customer and the Company.
4. CONTRACT PRICE AND PAYMENT
4.1 The Contract Price quoted by the Company is exclusive of VAT (which if applicable shall be applied at the appropriate rate);
4.2 All prices quoted by the Company are valid for 30 days only, unless otherwise stipulated;
4.3 The Company reserves the right to increase the Contract Price to reflect:
4.3.1 any use of the studio space, equipment, goods, facilities or services beyond that provided for under the Contract; or
4.3.2 any increase in the cost of the provision of any studio space, equipment, goods, facilities or services due to any deficiency in the Customer’s instructions or any delay on the part of the Customer;
provided that the Company shall use reasonable endeavours to keep the amount of any such increase to a minimum and, where practicable, shall advise the Customer in writing of the nature and amount of such increase prior to incurring it;
4.4 The Company shall submit an invoice to the Customer and payment will be due as set out on the Company's invoice;
4.5 In the event that the Customer fails to make payment by the due date the Company shall, without prejudice to its other rights under the Contract (including but not limited to those set out in Clause 5)or otherwise, at law or in equity be entitled to:
4.5.1 charge the Customer interest from the date specified for payment of the principal sum described in Clause 4.4 upon the outstanding amount at such rate as the Company may decide but which in any event shall not exceed 5% per annum above the Company’s principal banker's normal base rate from time to time accruing daily until payment of the principal sum is paid in full;
4.5.2 require payment in advance for the continued performance of the Contract without incurring any liability whatsoever to the Customer;
4.5.3 refuse to further perform the Contract without incurring any liability whatsoever to the Customer;
4.5.4 suspend further performance of the Contract until the Customer has supplied a satisfactory credit reference or bank guarantee;
4.5.5 be reimbursed by the Customer for all costs and expenses incurred in the collection of any overdue amount.
4.6 The existence of a query in respect of any individual item in an invoice submitted by the Company shall not affect the due date for payment of the balance of the invoice and such queries shall be notified in writing to the Company no later than 14 days from the date of invoice.
5.1 Cancellation of an order and/or booking will be effective only upon receipt by the Company of written notice of cancellation by the Customer.
5.2 In the event of cancellation the Customer agrees to indemnify the Company in full against all loss (including loss of income), costs and expenses incurred or committed by the Company as a result of the order and/or booking.
6.1 The Customer shall indemnify the Company against all liabilities, claims, demands, damages, losses, costs and expenses (including legal costs) which may be incurred by or brought against the Company in respect of:
6.1.1 injury to any person or loss of or damage to any property arising out of or in connection with the use by the Customer of any goods and/or facilities and/or services as a result of any negligent act or omission by the Customer;
6.1.2 any breach of or non-compliance by the Customer of any of its obligations or warranties under the Contract; provided the obligations or warranties are not unreasonable in nature
6.1.3 the Customer’s negligence or wilful default;
6.1.4 any claims from third parties made as a result of the Customer’s negligent acts or omissions.
7.1 Nothing in the Contract excludes either party’s liability for death or personal injury caused by that party’s negligence or wilful default.
7.2 Subject to Clause 7.1 the Company shall only be liable to the Customer for accidental loss or damage caused by the negligence or default of the Company.
7.3 In no circumstances shall the Company and Customer be liable for any loss of profits or any indirect or consequential loss of any nature whatsoever.
7.4 In any event, and notwithstanding anything contained in the Contract, the Company’s and Customer’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever arising by reason or in connection with this Contract (except in relation to death or personal injury) shall be limited to the Contract Price.
7.5 The Company shall not be liable to the Customer for any Loss or damage to any image, sound, picture, music, work or any other intangible property recorded on or incorporated into or in any other way relating to the Customer Materials, unless caused by Company’s wilful misconduct or negligence. The Company’s liability for Loss or damage to the Customer's Materials shall be limited to the replacement costs of the tangible property.
8.1 The Customer shall arrange and maintain insurance throughout the Contract Period to cover its legal liabilities and the responsibilities imposed by the Contract including but not limited to Public Liability Insurance with a scope of cover appropriate to the premises, equipment, goods, facilities and services supplied under the Contract with an adequate indemnity limit which shall be no less than ten million pounds sterling (£10,000,000) in respect of any one claim or incident. For the avoidance of doubt, such minimum insurance level shall not be a limit of liability under the Contract.
8.2 Where the Customer engages a sub-contractor the Customer shall ensure that the insurance requirements as specified in Clause 8.1 extend as necessary to cover the liabilities and responsibilities of the sub-contractor under the Contract
8.3 The Customer shall provide to the Company prior to the commencement of Contract Period satisfactory evidence of compliance with this Clause 8.
8.4 Where the Contract includes Dry Hireof equipment, goods or facilities:
8.4.1 the Customer shall arrange and maintain adequate insurance in relation to the loss of or damage to any equipment goods or facilities hired or loaned to the Customer by the Company;
8.4.2 the Customer shall be responsible to the Company for the prompt repair or replacement (at the Company’s option) of equipment goods or facilities lost or damaged whilst in the charge and control of the Customer, other than to the extent that the loss or damage is caused by the Company’s breach of any of the provisions of the Contract or any other of its omissions.
8.5 The Company shall not be liable for any consequential or indirect loss, including any loss of profits revenues and/or business, anticipated savings, whether or not in the contemplation of the parties at the time of entering into the Contract, incurred by the Customer as a result of the loss of or damage to the equipment goods and facilities (by whatever means) during the course of their being hired or loaned by the Company, and the Customer is advised to arrange and maintain insurance in respect of such loss.
8.6 The Customer shall provide to the Company prior to the commencement of Contract Period satisfactory evidence of compliance with this Clause 8.
9. EQUIPMENT AND MATERIALS
9.1 Unless the Company shall otherwise agree in writing, the Company does not accept responsibility for loss or damage to any equipment and materials or other property belonging to or brought into the workplace by the Customer or any of the Customer’s employees, agents, sub-contractors and such items shall at all material times be at the risk of the Customer.
9.2 In the event that the Customer supplies its own equipment and materials in connection with any order/booking, the Company shall have no liability in respect of any damage, delay or failure caused by any deficiency in the quality or functionality of such equipment and materials or their incompatibility with the Company’s equipment and materials.
10. STUDIO AND OTHER REGULATIONS
10.1 The Customer shall, and shall procure that all its Staff shall, at all times observe and fully comply with such Company health and safety regulations as the Company shall from time to time prescribe.
10.2 The Company shall be entitled to refuse entry to, or remove from the Premises any person not bona fide employed by or acting on behalf of the Customer or acting in accordance with the Customer’s instructions in connection with the Customer’s use of the Services or any other person who fails to comply with the Company’s regulations or any provision of the Agreement or whom the Company reasonably considers (in its absolute discretion) to be a nuisance or danger to others at the Premises.
10.3 If the Customer requires the presence of guests at the Premises, the Customer shall ensure that all appropriate regulations and precautions in respect of the safety of such guests are observed.
10.4 Minors are brought onto the Premises entirely the Customer’s risk. The Customer shall ensure that any such minors are adequately supervised at all times.
10.5 The Company shall be entitled, without prejudice to any other rights it may have, to prevent or otherwise preclude the Customer or its Staff from carrying out any activity which, in the opinion of the Company and/or any inspector, poses an unacceptable risk of damage to property, injury or loss of life
11.1 The Company acknowledges and agrees that all rights, title and interest of every kind and nature in and to the Customer Materials is the Customer’s sole and exclusive property, and the Customer has the sole right to use (or not to use) all or any part of it in its sole discretion. For the avoidance of doubt, the Customer shall own all of the intellectual property rights in and the Production in all media whether now known or hereafter devised, throughout the universe including, but not limited to, all Customer Materials and technical and master material and copies in any format including, but not limited, to negatives, rushes, out-takes, relating to the Production.
12. SUPPLY OF STUDIO SPACE, EQUIPMENT, GOODS, FACILITIES AND SERVICES
12.1 The Company will exercise all reasonable care and skill in the discharge of its obligations in respect of the order and/or booking and will provide such services, equipment and materials as the Company considers reasonable for such purpose PROVIDED THAT:
12.1.1 it shall nevertheless be the responsibility of the Customer prior to the commencement of the Contract to ensure that all services, equipment and materials to be provided by the Company are appropriate to and will satisfy the Customer’s specific requirements.
12.1.2 if the Customer shall require the Company to supply any additional services, equipment and materials not provided for in the Contract Price, the Company shall use its reasonable endeavours to supply the same on no more than the Company’s standard rates in force at the time and any extra charge shall be agreed with and borne by the Customer in addition to the Contract Price; and
12.1.3 The Company may at any time without notice make such changes to its services, equipment and materials as may be necessary to comply with any applicable safety or other statutory requirements or which do not materially affect the nature and quality of the services, equipment and materials provided.
12.2 Each of the Company and the Customer acknowledges its legal responsibilities for the health and safety of persons attending any workplace and agrees to take all reasonable practicable steps to ensure the health, safety and welfare of their respective staff, other persons engaged in the Customer’s production or other visitors to or users of the workplace.
12.3 Without prejudice to the obligations of the Customer under Clause 12.2, the Company reserves the right to refuse permission for the operation or use in the workplace of any equipment and materials provided by the Customer which the Company reasonably suspects may be unsafe or a risk to health and for this purpose the Customer agrees that the Company may (but shall not be obliged to) carry out safety tests on such equipment and materials as The Company may think fit.
12.5 Whilst the Company will take all reasonable steps to ensure continuity of network and utility services, including telephone/broadband, electricity etc, it accepts no responsibility for any failure whatsoever which is outside its control.
12.6 Any materials used in connection with sets constructed by the Customer shall be forthwith removed from the Studio at the end of the hire period at the expense of the Customer
12.7 No alterations, decorations or additions to the Studio are permitted without the consent of the Company and at the end of the hire period the Studio must be surrendered in the same condition that it was in at the start of the hire period. Any costs incurred by the Company arising out of any breach of this condition shall be paid by the Customer.
13. USE OF EQUIPMENT – DRY HIRE
13.1 The Customer warrants and agrees:
13.1.5 the Customer shall be responsible for the safe-keeping, use in a workmanlike manner within the manufacturers rated capacity, and return on completion of the hire in equal order (fair wear and tear excepted) of all equipment on hire;
13.1.6 the Customer shall be responsible for compliance with all laws and regulations applicable to the equipment and to the work being performed by the equipment;
13.1.7 the Customer shall take all reasonable steps to keep himself/herself acquainted with the state and conditions of the equipment and shall be solely responsible for routine inspection of the equipment and for any damage, loss or accidents whether directly or indirectly arising from the use of the equipment;
13.1.8 the Customer shall regularly clean the equipment at the Customer’s expense and return it to the Company in a perfectly clean condition.
13.2 The Customer shall:
13.2.1 use the equipment only for the purposes for which it is designed;
13.2.2 maintain the equipment in the same working condition and appearance and state of repair as at time of collection or delivery and in default of so doing pay to the Company on demand the cost of remedy, repair or replacement howsoever any damage might be caused;
13.2.3 not sublet, lend or otherwise part with the possession of the equipment or any item thereof;
14.1 The Company shall have the right to terminate the Contract at any time upon written notice to the Customer if:
14.1.1 the Customer shall fail to make any payment due under the Contract in full in accordance with Clause 4;
14.1.2 the Customer commits an act of bankruptcy or insolvency, is unable to pay its debts as or when they fall due or makes any composition or arrangement with its creditors, or goes into liquidation whether voluntary or compulsory, or if any order is made or a resolution is passed for the winding up of the Customer (except for the purpose of a solvent amalgamation or reconstruction), or if it ceases or prepares to cease trading, or if it suffers the appointment of a receiver, administrative receiver, administrator or similar officer over the whole or part of any of its assets; or
14.2 The Customer shall be entitled to terminate the Contract with immediate effect in writing if at any time during the Contract the Company shall commit or cause to be committed any breach of its obligations under the Contract provided that in the case of a breach capable of remedy the Customer shall have first given written notice to the Company specifying the breach complained of and requiring the same to be remedied within a reasonable period of time from notification thereof and the Company shall have failed to comply therewith.
14.3 Termination of the Contract howsoever arising shall be without prejudice to any rights accruing or already accrued to either party at the date of termination.
14.4 Upon termination of the Contract for any cause whatsoever all sums accrued due to the Company under the Contract shall immediately become due and payable to the Company.
14.5 The rights and obligations of either party arising under Clauses 6, 7, 14.4, 15, 19 and 21 shall survive termination of the Contract.
15. FORCE MAJEURE
15.1 Neither party shall be liable for any failure to fulfil its obligations under the Contract by reason of any event beyond its reasonable control including but not by way of limitation Acts of God, strikes, lockouts, war, riot, civil commotion, order or Act of Government (whether national or international), any such occurrence being deemed an event of force majeure.
15.2 If either the Company or the Customer is prevented or delayed from performing any of its obligations under the Contract by an event of force majeure then that party shall be entitled by notice in writing to the other party given at any time during the subsistence of the event to suspend the Contract for the duration of the event. Where the party giving notice is unable to proceed with the Contract by reason of matters arising from the event for a reasonable period of time following notice of suspension then such party shall have the right to terminate the Contract with immediate effect in writing.
16.1 Any notice, request, instruction or other document to be given hereunder shall be delivered or sent by first class, pre-paid post to the last known address of the party concerned (or to such other address as may have been notified in accordance with the provisions of this Clause).
16.2 Any notice or document shall be deemed to have been served:
16.2.1 if delivered by hand or sent at the time of delivery if between the hours of 9.00 am and 5.00 pm on a business day or otherwise at 9.00 am on the next succeeding business day; and
16.2.2 if posted, on the second business day after posting and for this purpose a “business day” shall mean a day other than a Saturday, Sunday or public holiday in England.
16.3 In proving service (without prejudice to any other means):
16.3.1 by post, it shall only be necessary to prove that the envelope containing the notice or document was properly addressed, stamped and posted and that it has not been returned to the sender;
Neither the Company nor the Customer shall be entitled to assign (in whole or in part) the benefit or burden of any Contract to any third party without the prior written consent of the other, except that the foregoing shall not preclude the use by the Company of hired-in equipment and materials, sub-contract labour or facilities.
The failure of either party to exercise or enforce any right conferred upon it by the Contract shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time(s) thereafter. No waiver of any term or condition of the Contract shall operate as a waiver of another or constitute a continuing waiver.
Any amendment or variation to the Contract shall be made by prior written agreement between the parties.
20. NO AGENCY, PARTNERSHIP OR JOINT VENTURE
Nothing in the terms of the Contract shall create or be deemed to create a partnership or a joint venture or shall be deemed to constitute either party as the agent of the other.
The Contract shall be construed in accordance with the laws of England.