Broadcast Network Connections – Hire Agreement
1. Interpretation
1.1. In this Agreement unless the context otherwise requires: “Agreement” means collectively this agreement, any schedule(s) overleaf or attached and the Terms; “Default Rate” means 2% per month calculated on a daily basis (as wellafterasbeforeanyjudgement);”Equipment”meanstheequipmentand goods listed in this Agreement, all parts, accessories, additions and replacements(or any of them); “Hire” means hire of the Equipment subject to the terms of this Agreement; “HireCharges” means BNC charges for the provision of Equipment and Services as shown on its current rate card for the time being or such other charges as agreed by BNC in writing; “Hire Period” means the period during which Equipment or Services will be provided specified in the Schedule or such other period as agreed by BNC in writing; “Hirer” means the person, firm or company identified as such in this Agreement; “Party” means BNC or Hirer; ” BNC ” means Broadcast Network Connections GmbH; “Services” means the services or any of them which BNC agrees to supply in accordance with this Agreement; “Terms” means the terms and conditions set out in and to which this Agreement is subject and any amendments expressly agreed in writing between BNC GmbH and Supplier.
1.2. Headings are for convenience only and shall not affect interpretation.
1.3. Any typographical or clerical error or omission in documents issued by BNC shall be subject to correction without liability on the part of BNC.
2. Equipment Hire and Services
2.1. BNC agrees to supply and Hirer agrees to accept Equipment and
Services subject to these Terms which shall govern the Agreement to the
exclusion of any other terms and conditions contained in any document or
implied by course of dealing and shall not be varied except in writing
signed by BNC and Supplier.
2.2. Unless otherwise agreed in writing by BNC, all Equipment supplied
by BNC is supplied on hire in accordance with these Terms. As between
the parties, ownership of Equipment shall remain at all times with BNC.
Hirer shall have no rights in Equipment other than as set out int his
Agreement.
2.3. Hire shall commence on the first day and end on last day of Hire
Period subject to the provisions of this Agreement for earlier
termination. Unless BNC otherwise agrees, Equipment will be collected
from the offices of BNC and returned to the same address by Hirer during
normal working hours.
2.4. This Agreement may not be cancelled by Hirer, in whole or in part,
without consent of BNC and only on terms that Hirer indemnifies BNC in
full against all loss (including loss of profit and reimbursement of all
costs) incurred by BNC prior to or as a result of cancellation.
2.5. Hirer acknowledges that Equipment was selected by Hirer as suitable
for its purpose and Hirer has not been induced to enter into this
Agreement by any prior representation by BNC except as specifically
contained in this Agreement.
2.6. BNC will use reasonable efforts to ensure Equipment is in good
working order on delivery and of satisfactory quality and that any
Services supplied by BNC will be provided using reasonable care and
skill by persons of appropriate competence and training and in
accordance with this Agreement.
2.7. BNC will at its discretion use reasonable endeavours to repair or
replace any defective Equipment or remedy any deficient Services or will
provide a pro rata credit of the Hire Charge provided that the defect
or deficiency is caused exclusively by BNC negligence or breach of this
Agreement. BNC shall not be liable to provide on-site support unless
contracted as part of the Services.
3. Hire Charges and Other Payments
3.1. Hire Charges shall be paid by Hirer in full in cleared funds on or
before the commencement of the Hire or on such other date(s) as BNC may
agree in writing. Hire Charges are subject to any applicable VAT, which
shall be paid in addition and on the same date. Time shall be of the
essence in respect of all payments due under this Agreement. Hire
Charges shall be treated as paid on the date BNC obtains value, shall
bear interest at the Default Rate from the date due until payment and
shall be paid without any deduction, set-off or counter claim
whatsoever. Any discounts quoted or agreed may be forfeited at BNC
discretion if payment is received after the due date.
3.2. Hirer shall remain liable for Hire Charges at the same rate as
provided in this Agreement until end of Hire Period or, if later, date
of return of Equipment to BNC and, if Equipment is lost, stolen, damaged
or destroyed, until the Equipment has been replaced or repaired or BNC
has been compensated in full.
3.3. BNC reserves right to appropriate any payments made
(notwithstanding express appropriation by Hirer) to any sums payable to
BNC under this or any other agreement between the Parties.
4. Hirer’s Obligations
4.1. Hirer undertakes that, at all times during the Hire Period and until return of Equipment to BNC
Hirer shall:
4.1.1. take all reasonable care of Equipment to ensure its safety and security;
4.1.2. check Equipment on delivery and before taking into use and
immediately notify BNC of any defect, loss or damage at any time;
4.1.3. ensure Equipment is only used in a safe manner by competent
persons without risk to health; in accordance with good practice and any
instructions of the manufacturer or BNC and not contrary to any law or
for any purpose for which Equipment is not designed or reasonably
suitable;
4.1.4. unless authorised by BNC, not attempt to modify or repair the
Equipment, open the outer case (unless required in normal use) or remove
any notices or serial numbers on the Equipment;
4.1.5. upon request inform BNC of the location of Equipment and permit
or procure access for BNC or its agents to the Equipment for inspection,
repair or otherwise as BNC may require;
4.1.6. if transit of Equipment is arranged by Hirer, obtain all
necessary customs clearances, comply with all applicable import/export
regulations and pay all charges, taxes and duties;
4.1.7.take all reasonable steps to safeguard the health, safety and
welfare of BNC personnel while onsite and conduct and provide BNC with
copies of all relevant risk assessments and other health and safety
documentation;
4.1.8. not sell, sub-rent or otherwise dispose of or part with
possession of Equipment or any interest therein or do or permit to be
done any act or thing which may jeopardize BNC rights therein but keep
Equipment in Hirer’s possession and control free from lien, charge or
encumbrance so that Equipment shall at all times remain property of BNC
or its legal owner;
4.1.9. where BNC Services are dependent on provision of other equipment
or services arranged by Hirer, 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..
4.2. Hirer undertakes (notwithstanding termination of the Hire) to
indemnify BNC against all liabilities whatsoever arising out of the
possession, operation or use of Equipment by or on behalf of Hirer
provided that such indemnity shall not extend to liability for death or
personal injury caused by BNC negligence.
5. Risk and Insurance
5.1. The Equipment shall be at the risk of the Hirer from the time of
delivery to Hirer or its carrier, until its return to BNC premises or,if
earlier, possession is taken by BNC carrier.
5.2. Hirer shall at its expense insure with a reputable insurance
company (namingBNC as an additional insured) against: all loss or damage
to Equipment in an amount equal to its replacement cost new; any
on-going Hire Charges under Clause 3.2; and third party liability.
5.3. Hirer will on request at any time produce to BNC the insurance
policy and receipt for current premium. If Hirer fails to provide
evidence of insurance to BNC satisfaction, BNC may (but shall not be
obliged to) terminate this Agreement without liability to Hirer or agree
to insure Equipment itself, in which case Hirer will pay BNC charges
for provision of insurance and, in event of a claim, the amount of the
insurance policy excess or deductible.
5.4. Hirer shall not do or allow to be done any act or thing whereby insurance of Equipment may be invalidated.
5.5. In event of loss of or damage to Equipment, Hirer shall immediately
notify BNC, assist in making any appropriate insurance claim and,
except with BNC consent, not settle or compromise any claim against the
insurer or any third party. Hirer hereby irrevocably authorizes BNC in
name and on behalf of Hirer to make any claims under the insurance in
respect of the Equipment; to settle or compromise such claims; and to
receive and give good discharge to insurers for any moneys payable.
5.6.BNC accepts no responsibility for loss or damage to any equipment or
materials of the Hirer or any third party, which BNC may agree to store
or transport, and any such equipment or materials shall at all times be
at the Hirer’s risk.
6. Exclusion and Limitation of Liability
6.1. Nothing in these Terms shall limit or exclude the liability of
either Party in respect of death or personal injury resulting from its
negligence or for fraud.
6.2.Hirer acknowledges that electronic equipment may suffer breakdown or
malfunction from time to time without fault and that consequences to
Hirer of breach of this Agreement by BNC may be disproportionate to BNC
Hire Charges. Therefore, Hirer agrees that BNC 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 BNC employees,
agents and sub-contractors) shall be limited as follows:
6.2.1. BNC total liability in respect of this Agreement shall not exceed
the total Hire Charges payable by the Hirer except that in the case of
recorded material, BNC 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 BNC negligence, BNC liability shall be
limited to € 1.000.000,00.
6.2.2. except as provided in these terms, all conditions, warranties and
representations concerning the Equipment, their state, quality,
description, fitness for purpose or otherwise are excluded to the
fullest extent permitted by law;
6.3. Hirer shall give BNC reasonable details in writing of any claim
against BNC without delay and no later than 30 days from occurrence of
the matter giving rise to the claim;
6.4.Except as this Agreement may otherwise expressly provide, neither
Party will be liable, in contract, tort (including negligence) or for
breach of statutory duty or pursuant to any indemnity or in any other
way for any indirect or consequential losses or, whether arising
directly or indirectly, for any loss of profits, loss of information,
data or media content, loss of business, loss of goodwill or damage to
reputation or anticipated savings.
6.5. If so requested by Hirer, BNC may consider accepting higher limits
of liability subject to payment by Hirer of an additional charge.
7. Sale of Goods
7.1. Any goods agreed to be sold by BNC to Hirer are sold by BNC as
beneficial owner free of any lien, charge or encumbrance but subject
thereto: are sold “as is”; no warranty is given as to quality,
performance, functionality or fitness for purpose; no intellectual
property rights are assigned or licensed and the Hirer shall be
responsible for obtaining its own licence of any software included with
the goods. Notwithstanding delivery or passing of risk, title to the
goods shall not pass until BNC has received payment of the price in full
in cleared funds.
8. Termination
8.1. BNC may (without prejudice to any other right or remedy) forthwith
by notice terminate or suspend performance of this Agreement in whole or
part without liability to Supplier if: Hirer makes any voluntary
arrangement with its creditors; (being an individual or firm) becomes
bankrupt; (being a company) has petition for administration or
winding-up order presented against it, goes into liquidation (other than
for purposes of amalgamation or reconstruction); or an encumbrancer
takes possession or receiver is appointed of any property or assets of
Hirer; or Hirer ceases or threatens to cease to carry on business or
causes or permits to be done any act or thing whereby BNC rights in
Equipment are prejudiced; or BNC reasonably apprehends that any of the
above is about to occur (or anything analogous under law s of any
relevant jurisdiction); or Hirer fails to pay any sums payable hereunder
in full on the due date or is in breach of this Agreement and (if
capable of remedy) fails to remedy such breach within 7 days of notice
by BNC.
8.2. Termination or cancellation of this Agreement, in whole or in part,
shall not limit any other right or remedy of either Party against the
other under these Terms or at law and shall be effective notwithstanding
subsequent acceptance by BNC of Hire Charges. Upon termination:
8.2.1. Hirer shall at Hirer’s expense forthwith return Equipment to BNC
in good working condition (fair wear and tear excepted) and in default
BNC may without notice repossess Equipment and for this purpose freely
enter any premises where Equipment is believed to be located;
8.2.2. Hirer shall become immediately liable to pay to PBH all and any
unpaid balance and arrears of Hire Charges and other sums payable under
this Agreement including, without limitation, all costs and expenses
(including any legal costs and expenses) incurred by BNC in locating,
repossessing or restoring Equipment and in collecting any sums due or
otherwise in obtaining due performance of Hirer’s obligations hereunder.
9. ForceMajeure
9.1. BNC shall not be liable to Hirer for delay or failure due to any
cause beyond BNC reasonable control (including, without limitation, due
to fire, flood, material adverse weather, epidemic, quarantine
restriction, trade disputes or industrial actions, actual or threatened
act of war, terrorism, civil disturbance, act or omission of government)
and in such circumstances BNC reserves right to suspend further
performance of all or part of Hire or to terminate this Agreement. In
such event, Hirer shall be liable for Hire Charges, apportioned to date
of such termination.
10. General
10.1. If Hirer is more than one person, they shall be liable both individually and together.
10.2. 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 confidenceaboutit.
10.3. Nothing in this Agreement will be deemed to grant any right or
benefit to any person (other than BNC and Hirer) or entitle any third
party to enforce any provision of this Agreement.
10.4. Delay shall not prevent BNC 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.
10.5. 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.
10.6. Neither Party shall assign or otherwise transfer any of its rights
or obligations under this Agreement except that bnc may sub-contract
all or any of its obligations to a competent third party.
10.7. 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.
10.8. This Agreement shall be governed and construed in accordance with
German law. The parties agree to submit to the non-exclusive
jurisdiction of the German Courts.