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TERMS & CONDITIONS OF TRADE
1. APPLICATION OF TERMS AND CONDITIONS
The Supplier shall sell and the Customer shall purchase or hire the Equipment or Services in accordance with any Proposals, quotation or offer of the Supplier which is accepted by the Customer, or any order of the Customer which is accepted by the Supplier.
1.2. These Terms and Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such Proposal is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
1.3. The Proposal submitted by the Supplier shall not bind the Supplier and such Proposal shall serve only as an invitation for the Customer to place an order.
1.4. No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in Writing by the Supplier through the Order Confirmation.
2.1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
(a) "Customer" means the person who accepts a quotation or offer of the Supplier for the sale or hire of the Equipment or Services or whose order for the Equipment or Services is accepted by the Supplier;
(b) "Credit Account" means the Customer's credit account, detailing Equipment and Services purchased and sums owing to the Supplier;
(c) "Contract" means the contract for the sale and purchase of Equipment and/or Services under these Terms and Conditions;
(d) "Delivery Date" means the date on which the Equipment and/or Services are to be delivered as stipulated in the Customer's order and accepted by the Supplier;
(e) "Dry Hire" means a hire of equipment where the Supplier does not provide an accompanying technician to the Customer for the full duration of a rental.
(f) "Proposal" means a statement of work, quotation or other similar document describing the Equipment and/or Services to be provided by the Supplier;
(g) "Services" means the services specified in the Proposal;
(h) "Equipment" means the Equipment (including any instalment of the Equipment or any parts for them) which the Supplier is to supply in accordance with these Terms and Conditions; and
(i) "Supplier" means Novum Audio Visual Limited, a company registered in England under number 5631041 whose registered office is at 3C Hopewell House, Whitehill Industrial Park, Whitehill Lane, Wootton Bassett, SN4 7DB
(j) "Technician" means the employee(s) agent(s) or Subcontractor(s) of the Supplier.
(k) "Order Confirmation" means a statement of work describing the Equipment and/or Services to be accepted as the final and authoritative specification accepted by, and to be executed by Supplier under instruction of the Customer.
(l) "Delivery Note" the signed document accepted by the Customer as the evidence of delivery of Equipment or Services.
(m) "Collection Note" the signed document accepted by the Customer as the evidence of return of hired Equipment.
2.2. Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.2.1. "Writing", and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.2.2. "These Terms and Conditions" is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
2.2.3. A Schedule is a schedule to these Terms and Conditions; and
2.2.4. A Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule; and
2.2.5. A "Party" or the "Parties" refer to the parties to these Terms and Conditions.
2.3. The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4. Words imparting the singular number shall include the plural and vice versa. 2.5. References to any gender shall include the other gender.
3. BASIS OF SALE OR HIRE
3.1. The Contract is subject to these Conditions which supersede all previous communications representations and agreements whether written or oral and no additions or alterations to these Conditions shall be binding on the Supplier unless agreed to in writing and signed by a duly authorised officer or employee or agent of the Supplier. Any terms and conditions proposed by the Customer shall only apply if the same have been agreed by or on behalf of the Supplier in accordance with the provisions of this paragraph and in the case of any conflict between such terms and conditions and these Conditions the latter shall prevail.
3.2. The Supplier's employees or agents are not authorised to make any representations concerning the Equipment unless such representations are confirmed by the Supplier in writing. In entering into a Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.3. No variation to these Terms and Conditions shall be binding unless agreed in writing between the Customer and the Supplier or their authorised representatives.
3.4. Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction with reasonable and acceptable limitation of liability on the part of the Supplier.
3.5. An order placed by the Customer may not be withdrawn, cancelled or altered without prior acceptance by the Supplier and will be subject to the provisions of clause 9.
3.6. No contract for the sale of the Equipment and/or Services shall be binding on the Supplier unless the Supplier has issued a quotation which is expressed to be a contractual offer to sell or hire the Equipment and/or Services or has accepted an order placed by the Customer by whichever is the earlier of: the Supplier's written acceptance; delivery of the Equipment and/or Services; the Supplier's invoice.
3.7. No order which has been accepted by the Supplier may be cancelled by the Customer except with the written agreement of the Supplier on the terms that the Customer shall indemnify the Supplier in full against any and all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
3.8. The Supplier reserves the right to subcontract all or any part of the Customer's order and to assign or otherwise deal in anyway whatsoever with the Supplier's interest in the Equipment and in the Proposal.
4. SUPPLY OF EQUIPMENT
4.1. The Supplier will endeavour to ensure that Equipment supplied for purchase or hire is in good order and condition and sound at the time of delivery to, or collection by the Customer but it shall be the responsibility of the Customer to ensure that the Equipment is fully suitable for the purpose for which it is supplied.
4.2. Where the Equipment is provided for hire, the Customer shall use or cause to be used the Equipment in a skilful and proper manner.
4.3. Where the Equipment is provided for hire the Customer shall, at his own expense, keep the Equipment in good and substantial repair and condition (except for fair wear and tear) and shall take all necessary precautions to ensure its safety and security.
4.4. Where Equipment is provided for hire the Customer will not open the outer case of the Equipment (if any) or of any item or part thereon, not interfere in any way with the equipment or the mechanism thereof or any nameplates or signs or serial numbers thereon and will not expose the Equipment to the elements (particularly to salt water and spray) and will keep the Equipment protected in all respects.
4.5. Where Equipment is provided for hire, unless the same shall have been caused by the wilful default or misconduct of Technicians provided by the Supplier any loss or damage to the Equipment including loss or damage caused by non familiarization or misuse of the same, is the sole responsibility of the Customer who will be charged with the cost of repair or the full replacement value of the Equipment as the case may be.
4.6. Where Equipment is provided for hire, the Customer must not repair or attempt to repair or request a third party to repair or attempt to repair the Equipment.
4.7. Any order or instruction required to be given to the Supplier by the Customer shall be given by him or his duly authorised agent in writing. If given orally it shall be confirmed in writing to the Supplier within three days. The Supplier shall not be liable for the consequences of any inaccuracies or misunderstandings resulting from any order or instructions by the Customer not received by the Supplier in writing or so confirmed. The Customer shall be solely responsible for any statement representation order instruction guidance or advice made or given by the Customer to any Technician.
4.8. Equipment provided for hire must not be used on any abnormal or hazardous assignment taken out of the United Kingdom or taken from the ground other than on a regular scheduled flight by any airline recognised by IATA unless otherwise agreed by the Supplier prior to the commencement of the hire. The Customer shall be solely responsible for obtaining all customs Clearances Licences and permits as shall be necessary to take the Equipment out of the United Kingdom. If any Equipment taken out of the United Kingdom is lost or is damaged or breaks down and the Supplier agrees to replace the same the Supplier's liability shall only extend to delivery of any replacement at an address in the United Kingdom.
4.9. It is the responsibility of the Customer to supply any relevant licenses for the use of equipment supplied, including, but not limited to:
Program Making and Special Events (PMSE) License
Public Performance License (PPL)
Performing Rights Society (PRS) License
Wireless Microphone and Monitors
5.1. The price of the Equipment and/or Services shall be the price listed in the Proposal or Contract only.
5.2. The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Equipment to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including, but not limited to, any foreign exchange fluctuation, taxation, increase in the costs of labour or materials), any change in delivery dates, quantities or specifications for the Equipment which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
5.3. Any settlement discount specified by the Supplier in the Proposal will be allowed by the Supplier to the Customer in respect of Equipment and/or Services for which payment is received by the Supplier on or before the due date and otherwise in accordance with the payment terms set out in these Terms and Conditions and provided that no other amounts owing by the Customer to the Supplier are overdue and unpaid.
5.4. The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Equipment and/or Services, which the Customer shall be additionally liable to pay to the Supplier.
6. CREDIT ACCOUNTS
6.1. The Customer may apply for a Credit Account with the Supplier which shall enable the Customer to pay for the Equipment and/or Services after their supply to the Customer, subject to these Terms and Conditions.
6.2. The Supplier shall assess the Customer's eligibility for a Credit Account taking action including, but not limited to, obtaining reports from credit reference agencies.
6.3. The Customer may purchase Equipment and/or Services from the Supplier prior to the setting up of a Credit Account; however no credit shall be extended to the Customer by the Supplier unless and until the Credit Account has been set up.
6.4. The Credit Account shall be subject to a credit limit which shall not be exceeded, subject to any express written agreement to the contrary from the Supplier.
6.5. The Supplier shall monitor and record the Customer's use of the Credit Account and their payment performance and reserve the right to alter and/or remove any credit limit without notice.
7.1. Payment shall be made in accordance with these Terms and Conditions.
7.2. Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier shall invoice the Customer on or at any time after delivery of the Equipment and/or Services, unless the Equipment is to be collected by the Customer or the Customer wrongfully fails to take delivery of the Equipment, in which event the Supplier shall be entitled to invoice the Customer for the price at any time after the Supplier has notified the Customer that the Equipment is ready for collection.
7.3. The full price shall be paid on placing of an order, unless otherwise agreed in writing between the Customer and Supplier.
7.4. Customers with approved credit accounts within limits shall pay all invoiced amounts within 14 days of the date of the Supplier's invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Customer and the Supplier in respect of the Contract.
7.5.1 If the Customer does not have a credit account, the Customer shall:
Pay a refundable deposit of not less than £350
Produce upon request formal identification and/or proof of address
Produce evidence of insurance to cover the value of all Equipment supplied
7.5.2 The amount of the deposit shall be returned to the Customer without interest when the Equipment has been returned to, and inspected by the Supplier as outlined in Section 1, and all charges and other monies due to the Supplier under the terms of the Proposal including those herewith have been paid.
7.6. Receipts for payment will be issued upon request.
7.7. All payments shall be made to the Supplier as indicated in the invoice issued by the Supplier.
7.8. The Supplier shall have the right to charge interest on overdue accounts at the appropriate rate, pursuant to the Late Payment of Commercial Debts (Interest) Act (1998), at 8% above the Bank of England base rate until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
8.1. The Supplier will arrange delivery and collection at a cost specified on the Proposal or Contract.
8.2.1. If delivered to the Customer the signature of any person purporting to be an employee of the Customer, Customer's agent or the Customer's Subcontractor shall be sufficient evidence of delivery.
8.2.2. If collected by the Customer the signature of any person purporting to be an employee of the Customer, Customer's agent or the Customer's Subcontractor shall be sufficient evidence of collection.
8.3. The Supplier shall use its best endeavours to comply with any time schedules but will accept no liability for non delivery of Equipment or non arrival of Technicians by a specific time or date or within a specified time from receipt of order.
8.4 The Company shall not be liable for delays due to unforeseen circumstances or due to causes beyond its control including but not limited to acts of nature, acts of Government labour disputes and delays in transport.
8.5. If the Customer fails to take delivery of the Equipment or any part of it on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Equipment and/or Services to be delivered on the Delivery Date, the Supplier shall be entitled upon given written notice to the Customer to store or arrange for the storage of any Equipment and then notwithstanding the provision of sub-Clause 12.1 of these Terms and Conditions, risk in the Equipment shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Supplier all costs and expenses including storage and insurance charges and travel and subsistence of Technicians arising from such failure.
8.6.1. Unless a schedule of times is agreed and confirmed in writing on the Proposal and/or Job Confirmation by the Supplier, the Customer warrants that the Supplier shall have unrestricted access to the delivery address between the hours of 08:00 and 18:00 each day that works are to occur, without interruption.
8.6.2. The Customer warrants the Supplier unrestricted access to the delivery venue without interruption to perform the specified and/or necessary works in connection with the delivery of the Contract for the duration of time stated in the Proposal and/or Job Confirmation. Should access be denied at this time the Customer shall be liable for additional associated labour charges as well as the equipment hire charges outlined in clause 9.2
9.1 In the event of cancellation of Services and/or Equipment for hire by the Customer, the Supplier reserves the right to make the following charges:
9.1.1. Less than 14 days notice - 50% of total price.
9.1.2. Less than 7 days - 100% of total price
9.2 If Equipment hired is not returned by the date and time specified, or is not available for collection as agreed on the Proposal, or is returned damaged or deemed not fit for rehire; the Customer will pay, for each calendar day after the return date specified on the Proposal, the Supplier's published rate, without discount.
9.3 The Contract may be terminated by the Supplier forthwith by written notice given by the Supplier to the Customer to that effect on the happening of any of the following events namely if
9.3.1. The Customer fails to pay any charges hereunder within seven days of the same having become due (whether demanded or not) or
9.3.2. The Customer fails to observe or perform any other of these Conditions or
9.3.3. If the Customer commits any act of bankruptcy or being a company goes into liquidation or
9.3.4. The Customer has a Receiver appointed in respect of the whole or any part of its undertaking or assets or Is subject to a Receiving Order or makes any arrangement with or assignment for the benefit of the Customer's creditors or if distress is levied or threatened on any of the Customer's property or if the Customer abandons the Equipment.
9.4 The termination of the Contract and the hire thereby created for any reason whatsoever shall not affect any other right or remedy of the Supplier against the Customer and without prejudice to the generality thereof shall not affect the right of the Supplier to recover from the Customer any hire charges and other monies due to the Company at the date of such determination and shall not affect the Supplier's right to recover damages from the Customer in respect of any breach of these Conditions.
10. INSPECTION / SHORTAGE
10.1. Equipment supplied by the Supplier shall be fit to perform the manufacturers intended purpose and the Customer must ensure that he has had an opportunity of examining the equipment before accepting delivery thereof and therefore accepts that the equipment supplied is in good working order and performing to the manufacturers specifications unless demonstrated otherwise at the time by the customer.
10.2 In the event of a fault the Customer must notify the Supplier immediately.
10.3. The Supplier shall be under no liability for any damage or shortages that would be apparent on reasonable, careful inspection if the terms of this Clause are not complied with and, in any event will be under no liability if a written complaint is not delivered to the Supplier within three Business Days of delivery detailing the alleged damage or shortage.
10.4. In all cases where defects or shortages are complained of the Supplier shall be under no liability in respect thereof unless an opportunity to inspect the Equipment is supplied to the Supplier before any use is made thereof or any alteration or modification is made thereto by the Customer.
10.5. Subject to the provisions of sub-Clauses 10.3 and 10.4, the Supplier shall make good any shortage in the Equipment and where appropriate repair or replace any Equipment damaged in transit as soon as it is reasonable to do so, and without additional cost to the Customer, but otherwise shall be under acceptable and reasonable limited liability arising from such shortage or damage.
10.6.1. In the event of the delivery of any goods by a courier, the Customer shall fully inspect the goods for defect, damage or shortage and mark the Delivery Note accordingly.
10.6.2. If full inspection is not possible at the time of delivery, the delivery note must be marked "UNCHECKED".
11. RETURN OF EQUIPMENT
Where Equipment is supplied for hire:
11.1. Unless otherwise agreed in writing between the Supplier and the Customer it shall be the responsibility of the Customer to return the Equipment to the Customer on termination of the hire, within the published office hours of the Supplier, and no later than the specified date and time specified on the Proposal. 11.2 If the Supplier agrees to collect the Equipment on termination of the hire the Customer shall remain fully responsible for the safety protection repair and condition (subject as aforesaid) of the Equipment until it is in the possession of the Supplier.
11.3 For the avoidance of any doubt the Customers shall be liable for payment of hire charges as from the time for which the commencement of the hire period stated on the Proposal until either
11.3.1. the time of its return to the Company or
11.3.2. if the Equipment is lost or stolen or is otherwise irrecoverable or is damaged then in any such case the time of its replacement or repair and the Company undertakes to replace or repair the same as soon as reasonably possible. A 24 hour period or part constitutes one days hire.
11.4. The Supplier shall inspect the returned Equipment and will report any defect, damage or shortage to the Customer if discovered within three working days of the return date specified on the Collection Note.
11.4.1 If the Supplier collects the Equipment, inspection for defect, damage or shortages shall take place at the Supplier's premises unless otherwise agreed in writing.
11.4.2. If the Supplier has agreed to inspect the Equipment at the collection address the Customer agrees to have the Equipment ready to inspect on arrival. Once inspection has been completed under the supervision of the Supplier, the Supplier's agent, or Supplier's Subcontractor the Customer shall return the equipment to its relevant flight cases or packaging.
11.5 The Customer shall be responsible to the Supplier for:
11.5.1 all costs and expenses in respect of:
126.96.36.199 rectifying any damage to the Equipment (fair wear and tear excepted) which occurred during the period in which the Equipment was at the Customer's risk; and
188.8.131.52 cleaning the Equipment following collection or return of the Equipment, in each case to return the Equipment to a condition fit for rehire. In addition, the Customer will continue to pay the Charges as outlined in Clause 9.2 until any repairs and or cleaning have been completed; and
11.5.2 the Replacement Cost in respect of lost or stolen Equipment and/or Equipment which is beyond economic repair and the Hirer will continue to pay the Charges until the Replacement Cost has been received by Novum AV.
12. RISK AND RETENTION OF TITLE
12.1. Risk of damage to or loss of the Equipment shall pass to the Customer:
12.1.1. in the case of Equipment to be delivered at the Supplier's premises, at the time when the Supplier notifies the Customer that the Equipment is available for collection; or
12.1.2. In the case of Equipment to be delivered otherwise than at the Supplier's premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Equipment, the time when the Supplier has tendered delivery of the Equipment.
12.2 Where Equipment is hired to the Customer, the legal and equitable title remains at all times with the Supplier.
12.3. Where Equipment is sold to the Customer, notwithstanding delivery and the passing of risk in the Equipment, or any other provision of these Terms and Conditions, legal and beneficial title of the Equipment shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Equipment.
12.4. Unless otherwise agreed in writing, it is the responsibility of the Customer to arrange adequate all risks insurance cover for the Equipment and the customer must meet any claims by the Supplier in respect of loss or damage to the same against the customer in full. The Supplier reserves the right to insist that evidence of the same is provided for inspection by the Supplier. In the absence of such insurance cover the customer accepts full liability for loss or damage to the equipment.
12.5. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Equipment which is the property of the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become immediately due and payable.
12.6. The Supplier reserves the right to repossess any Equipment in which the Supplier retains title without notice, should it become necessary to do so. The Customer irrevocably authorises the Supplier to enter the Customer's premises during normal business hours for the purpose of repossessing Equipment in which the Supplier retains title.
12.7. The Customer's right to possession of the Equipment in which the Supplier maintains legal and beneficial title shall terminate if:
12.7.1. The Customer commits or permits any material breach of his obligations under these Terms and Conditions;
12.7.2. The Customer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors;
12.7.3. The Customer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
12.7.4. The Customer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Customer, notice of intention to appoint an administrator is given by the Customer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer.
The Contract may not be assigned by the Customer, but the Supplier may assign or sub-contract all or any or its rights or obligations.
14. LIMITATION OF LIABILITY
14.1. Subject to Clauses 8, 10, 11 and 12, the following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
14.1.1 Any breach of these Terms and Conditions;
14.1.2 Any use made (including but not limited to modifications) or resale by the Customer of any of the Equipment, or of any product incorporating any of the Equipment; and
14.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
14.2. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 13 of the Sale of Equipment Act 1979) are, other than those required by law or otherwise agreed in writing, excluded from these Terms and Conditions and from the Contract.
14.3. Nothing in these Terms and Conditions excludes or limits the liability of the Supplier:
14.3.1 For death or personal injury caused by the Supplier's negligence;
14.3.2 for fraud or fraudulent misrepresentation; or
14.3.3 for any other matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability.
14.4. Subject to sub-Clauses 10.2 and 10.3:
14.4.1 the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the contract price; and
14.4.2 the Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
14.5. The Suppier shall not in any circumstances be liable to the Customer or any third party for any claims in respect of loss of profits special damage or any consequential loss whatsoever or be under any liability for or in respect of loss or damage to persons or property howsoever caused whether arising directly or indirectly from the hire or use of Equipment by the Supplier.
14.6. The Customer is advised not to use any original materials on in or in connection with the use of the Equipment and the Supplier cannot accept any responsibility in connection with any loss or damage to or in respect of the same
15. CONFIDENTIALITY, PUBLICATIONS AND ENDORSEMENTS
15.1. The Customer will regard as confidential the contract and all information obtained by the Customer relating to the business and/or products of the Supplier and will not use or disclose to any third party such information without the Supplier's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Customer's default;
15.2. The provisions of this Clause 16.2 shall survive the termination of the Contract.
16. GENERAL PROVISIONS
16.1 The Customer undertakes to ensure installation and use of Equipment, and use of Services including the working environment for Technicians supplied within a Contract, complies with all statutory requirements and regulations as may be in force.
16.2. English law governs these Conditions and each Contract and the Parties agree to the exclusive jurisdiction of the English Courts.