GENERAL TERMS AND CONDITIONS OF BUSINESS – UNITED KINGDOM – HAWTHORN

1. DEFINITIONS AND LAW

1.1. “the Company” shall mean the legal entity identified in the quote

1.2. “the Equipment” shall mean goods, components and other items hired or sold by the Company or any part thereof

1.3. “the Customer” is the person, firm, corporate or public body hiring or purchasing the Equipment. Any person purporting to act on behalf of the Customer shall be bound by the Contract

1.4. “Event” refers to the event for which the Customer is to hire Equipment and/ or services

1.5. “Interest” shall mean interest calculated in accordance with Clause 8.2

1.6. The Contract shall be interpreted and applied in accordance with laws of the country of the Company’s registered office and the parties to this contract agree to submit to the exclusive jurisdiction of those courts

2. 2. WET HIRE TERMS (FULL SERVICE – EQUIPMENT RENTAL AND LABOUR AND/OR ADDITIONAL SERVICES)

2.1. Charges

2.1.1. Hire charges commence from the date stated in the contract and are payable for the period of hire

2.2. Hire Period

2.2.1. The hiring period commences on the date specified in the Contract and continues for the period specified in the Contract and terminates on the last day of the hiring period at the time stated in the quote

2.3. Customer’s responsibilities

2.3.1. The Customer’s responsibility for the Equipment commences on receipt of the Equipment by the Customer or his agent or on delivery and ends when the Customer is in possession of the Company’s unqualified receipt for the return of all the Equipment

2.3.2. The Customer shall not at any time sell, dispose or otherwise part with control of the Equipment or attempt to do so

2.4. Equipment Specification

2.4.1. All descriptions and specifications, drawings and particulars of weights and dimensions issued by the Company are approximate only and are intended only to present a general idea of the goods to which they refer and shall not form part of the contract. Due to continuing development, the Company reserves the right to change specifications without notice

2.5. Equipment usage

2.5.1. the Company’s personnel, or their duly appointed affiliates, must handle and operate all Equipment.

2.5.2 Equipment may not be operated, moved, stored, or serviced by the Customer or any other party unless authorized by prior written agreement from the Company. The Customer may incur additional charges if Equipment is moved or relocated by unauthorized personnel.

2.5.3 The Customer agrees that the Company shall be permitted free access to the Equipment at any time before, during and/or after the event for purpose of set/strike, maintenance and routine checks.

2.5.4. Labour rates. This estimate, unless specifically indicated, does not include the following items: Crew transportation, lodging and local parking. All overtime labour will be billed at 1.5 times the hourly rate for the position (day rate divided by eight) for hours worked in excess of eight, and 2 times the hourly rate for hours worked in excess of 16 hours. The Company’s employees require a mandatory 11-hour break between work periods.

3. DRY HIRE TERMS (EQUIPMENT RENTAL ONLY)

3.1. Charges

3.1.1. Hire charges commence from the date stated in the contract and are payable for the period of hire

3.1.2. Equipment must be returned on the date specified in the Contract in a clean and serviceable condition and the Customer must obtain the Company’s receipt

3.1.3. Additional charges accrue at the full daily hire rate together with consequential loss in the event of the breach of these conditions or the Equipment not being available for use by other customers

3.1.4. All cables must be returned coiled and taped and in default a charge per cable will be made

3.1.5. The Company provides spare lamps with Equipment where appropriate. These and any lamps they replace must be returned with the Equipment and in default their full replacement cost will be charged

3.2. Hire Period

3.2.1. The hiring period commences at 7:00am on the date specified in the Contract and continues for the period specified in the Contract and terminates at midnight on the last day of the hiring period, unless specified otherwise in the quote

3.3 Customer’s responsibilities

3.3.1. The Customer’s responsibility for the Equipment commences on receipt of the Equipment by the Customer or his agent or on delivery and ends when the Customer is in possession of the Company’s unqualified receipt for the return of all the Equipment

3.3.2. The Customer shall not at any time sell dispose or otherwise part with control of the Equipment or attempt to do so

3.3.3 The Customer warrants that everyone who uses the Equipment has been properly instructed in its safe and proper operation and will ensure that every user is in possession of necessary instructional material and further will not allow the Equipment to be misused

3.3.4. The Customer will at all times fully indemnify the Company against any expense liability financial loss claim or proceedings whatsoever in respect of any personal injury or damage to or loss of any property arising out of or in connection with the delivery, hire, use, non-use, repossession, collection, return or non-return of the Equipment

3.3.5. Nothing in this clause shall affect the statutory rights of the Customers or purport to exclude any liability which may not be excluded legally.

3.4. Electrical Equipment

3.4.1. Any electrical Equipment should be used with plugs and/or sockets as fitted.

3.4.2. No Equipment shall be modified without prior written consent from the Company

3.4.3. The Customer shall be responsible at all times to arrange a proper supply of electricity for use with the Equipment and ensure that the Equipment shall at all times be properly earthed. Damage to Equipment from incorrectly connected or disrupted supply will be charged.

3.5. Equipment Maintenance and Reporting

3.5.1. The Customer shall ensure that the Equipment remains serviceable and clean during the hire period

3.5.2 Any breakdown or unsatisfactory working of Equipment shall be immediately notified to the Company

3.6. Equipment Maintenance and Reporting

3.6.1. The Customer shall under no circumstances attempt to repair the Equipment without prior authorisation from the Company

3.6.2. Any damaged or unsatisfactory Equipment must be returned to the Company’s premises for examination at the Customer’s cost

3.6.3. If the Equipment is involved in any accident resulting in damage to either the Equipment or other property or injury to any person, the Customer shall notify the Company immediately

3.6.4. Equipment must not be removed from any site originally specified by the Customer or from any subsequently authorised site without prior consent of the Company

3.7. Compatibility of Equipment

3.7.1. The Customer shall ensure that the Equipment is compatible and may safely be used with any other Equipment being used by the Customer

3.7.2. The Customer shall be responsible for ensuring that the Equipment is suitable for their purposes.

3.7.3. The Company reserves the right to supply equipment of a similar design to the Equipment specified.

3.7.4. All descriptions and specifications, drawings and particulars of weights and dimensions issued by the Company are approximate only and are intended only to present a general idea of the goods to which they refer and shall not form part of the contract. Due to continuing development, the Company reserves the right to change specifications without notice.

4. CONDITIONS APPLICABLE TO BOTH DRY & WET HIRES

4. 1. Acceptance

Quotes will be valid for a period of 30 days from the date stated. In the event a quote is not accepted, signed and returned to the Company within this period, it will be void and all prices are subject to change.

4.2. Estimate

Quotes are developed based upon information provided by the Customer and are only an estimate of Equipment and services to be provided. In the event the actual amount of Equipment, services, labour and any related merchandise provided in connection with the Event is greater than the amount specified in a quote, the Customer shall be charged for such additional Equipment, services and/or labour, at the Company’s prevailing standard rates. All labour, VAT, transport, shipping /handling, personnel transportation & accommodation, per-diem and electrical charges (if applicable to the Event) are estimated and final amounts will be charged and due upon final invoice.

4.3. Insurance

4.3.1. The Customer agrees to pay the Company the full retail cost of any Equipment lost stolen or damaged beyond economic repair (without deduction for usage wear tear or age)

4.3.2. The Customer shall insure the goods against the above liability

4.3.3. All monies received by the Customer from any insurance company or third party in settlement of any claim shall be held in trust by the Customer and paid to the Company on demand to the extent that any such payment is due under this clause

4.3.4. The Customer shall not compromise or settle any claim without the express consent of the Company

4.3.5. In the case of Equipment which is lost stolen or damaged beyond economic repair the Customer shall pay a charge at the full daily rate together with interest and consequential loss until the Equipment is replaced

4.4. Termination of hire

4.4.1 The Company shall be entitled to terminate the contract with immediate effect and to repossess the Equipment if at any time: (a) The Customer is in breach of these terms; or (b) The Customer shall take any steps or if any act or proceeding is commenced in which the Customer’s solvency is in the reasonable view of the Company in doubt. Such termination shall not affect the right of the Company to recover from the Customer any monies due under this contract interest consequential loss or damages for breach

4.4.2 The Customer hereby authorises the Company to enter upon any property, upon which the Company reasonably believe any Equipment to be held and the Company in their absolute discretion may recover and remove the Equipment

4.4.3 The Customer hereby authorises the Company (notwithstanding any subsequent instruction to the contrary after the date of the commencement of the Contract) to deduct any sums properly due to the Company arising under a breach of these terms from any credit card debit card or charge account details of which are in the possession of the Company

4.5. Cancellation of contract

4.5.1 Cancellation notices must be in writing and received by the Company’s representative before becoming effective.

4.5.2 The following shall apply should the customer cancel the contract:

– in the event of cancellation in writing 30 days before the beginning of hire 0% of the rental shall be due plus any expenses actually incurred by the Company

– in the event of cancellation between 29 and 10 days before the beginning of hire, 50% of the contract value or the total amount of expenses incurred to that point, whichever is the greater, shall be due

– in the event of cancellation 10 days or fewer before the beginning of hire, 100 % of the contract value shall be due.

4.5.3. Where scenic, gobos of other items are designed or fabricated as part of the contract an additional cancellation fee will be applicable, regardless of the date of cancellation, to an amount equal to the direct and indirect costs incurred by the Company or its affiliates in securing and/or constructing such custom materials plus a 15% administration fee.

4.5.4 Cancellation fees shall be due immediately upon any such cancellation by the Customer.

4.5.5. Postponement of an agreed date shall be regarded as a cancellation.

4.6. Ownership

The Company retains all title and rights in and to the Equipment and all related accessories.

5. CREATIVE SERVICES

Content production / customized media (e.g. graphics / artwork, videos, 3D visualizations etc.)

5.1. Minor adjustments (e.g. colours, spelling mistakes etc.) are included in the costs listed in the offer. Larger adjustments / corrections, which mean an increased effort beyond the project cost calculation, shall be agreed between the parties and, if necessary, shall be charged subsequently on the basis of the applicable daily and/or hourly rates via a written supplementary order, unless otherwise agreed in writing.

5.2. Costs for e.g. stock material/licenses, shooting(s), production/printing, courier/transport, travel costs (“third-party costs/expenses”) are only included in the offer if they are shown in the offer items. Depending on the concept/implementation, etc., additional costs may be incurred for the aforementioned expenses, if they are not already listed in the offer. In any case, external costs will be agreed upon with the Customer in advance.

5.3. If the Company is requested and commissioned by the Customer to use copyrighted property, which requires the obtaining of rights of use, the obtaining of rights of third parties of any kind, including the registration with the GEMA, is carried out on the Customer’s own responsibility in the name and for the account of the Customer. The Company will be held harmless in any case of infringement of third-party rights.

5.4. The transfer of open work files by the Company is not included and requires a separate agreement or remuneration if necessary.

5.5. Offers and contracts contain project-specific concepts with limited rights of use. Unlimited rights of use for this are subject to a charge and shall be listed and invoiced separately in the offer. In principle, the transfer of rights of use relates exclusively to the finished product (the content/output) that was created for the client for use within the scope of the order.

5.6. The Company is entitled to re-use project-specific concepts in its own interest, unless otherwise agreed in writing or no exclusive rights of use are agreed in writing.

6. GENERAL CONDITIONS

6.1. Power to Enter this Contract

6.1.1. The signatory to the contract warrants that they are duly authorised on the Customer’s behalf to enter into the contract and hereby personally indemnifies Hawthorn Theatrical Ltd. against all losses and costs that may be incurred by Hawthorn Theatrical Ltd. if this is not the case

6.1.2 Written acceptance of a quotation and/or the provision of a purchase order shall constitute the forming of a contract

6.2. Payment and Interest

6.2.1. Where payments are not made on the due date HAWTHORN THEATRICAL LTD will be entitled to interest on the amount that is overdue at National Westminster Bank PLC base rate prevailing for the period for which such monies are overdue together with 4% calculated on a day to day basis compounded with quarterly rests.

6.2.2. The payment of such interest shall be without prejudice to any other rights or remedies of HAWTHORN THEATRICAL LTD.

6.2.3. Any expenses incurred by HAWTHORN THEATRICAL LTD. in recovering overdue amounts, including but not limited to legal expenses, collection agency fees, and administrative charges, shall be borne by the Customer and shall be immediately due and payable upon demand.

6.2.4. Notwithstanding any provision in these terms of business to the contrary the customer shall if required by HAWTHORN THEATRICAL LTD pay such sum on account of the hire charges or price for goods and or services as shall be agreed at the time of placing the order

6.3. Liability

6.3.1. HAWTHORN THEATRICAL LTD’s liability for any defect in the equipment shall be limited to and in no case exceed:-
(a) any manufacturer’s warranty sold with the equipment; or if there shall be none
(b) replacement or repair of the defective equipment; or
(c) at HAWTHORN THEATRICAL LTD’s option a refund of the price

6.3.2. Consequential losses – Nothing in these terms and conditions shall make HAWTHORN THEATRICAL LTD liable for any consequential loss to the Customer including any expense liability loss claim or proceeding whatsoever caused by or arising out of the late delivery non delivery unsuitability incompatibility or unlawful repossession of the Equipment or any part thereof or any breakdown or stoppage of the same

6.3.3. LIMITATION OF LIABILITY: Notwithstanding any other provision, HAWTHORN THEATRICAL LTD’s aggregate liability to The Customer under any circumstances shall be strictly limited to an amount equal to the actual fees paid to HAWTHORN THEATRICAL LIABIILITY in connection with the Contract. Under no circumstances shall HAWTHORN THEATRICAL LTD’s liability exceed such fees.

6.4 Force Majeure

6.4.1. HAWTHORN THEATRICAL LTD’s failure to perform any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a failure to perform their part of the hire agreement.

6.5. Injury to Persons and Damage to Property

6.5.1. Subject to 6.3. above HAWTHORN THEATRICAL LTD shall not be liable for any loss other than that which directly arises from any injury to persons or damage to tangible property where and only to the extent that such injury or damage is caused by any defects in the Equipment and where such defect is caused by the negligence of HAWTHORN THEATRICAL LTD

6.6. Rights Reserved

6.6.1. Any failure by HAWTHORN THEATRICAL LTD to enforce any or all of these conditions shall not be construed as a waiver of any of HAWTHORN THEATRICAL LTD rights hereunder

6.6.2. If any term in this contract shall be held invalid such invalidation shall not affect the validity of the remaining terms

6.7. Terms of Contract

6.7.1. These conditions have effect in substitution for and to the exclusion of any condition put forward by the Customer

6.8. Delivery and Carriage

6.8.1. All times quoted or stated for deliveries are approximate only shall not be liable for any delay in delivery of the Equipment howsoever caused.

6.8.2. Hire charges or sale prices do not include carriage. Any expenses incurred by HAWTHORN THEATRICAL LTD in delivery or recovering equipment or attempting the same will be paid by the Customer

6.8.3. Where carriage charges are quoted by HAWTHORN THEATRICAL LTD such charges will include only for the time to load or unload alongside the HAWTHORN THEATRICAL LTD vehicle at the address specified by the Customer. Further time or attendance will be paid for by the Customer

6.8.4 HAWTHORN THEATRICAL LTD reserves the right to recharge additional costs of delivery and collection including, but not restricted to, parking fines, waiting time and toll charges.

6.8.5 HAWTHORN THEATRICAL LTD shall not be held liable for any damage incurred to a customer vehicle when loading\unloading or for the safe and secure loading of their vehicle.

6.8.6 Where The Customer makes arrangements for the delivery and collection of equipment, The Customer will be liable for loss or damage which occurs during transport of the equipment.

6.9. Copyright

6.9.1. HAWTHORN THEATRICAL LTD notifies the Customer that playing or showing copyright material in circumstances where the Customer or anyone authorised by him does not hold the appropriate Licence of the copyright holder he will infringe copyright and may become liable in damages for so doing

6.9.2. The Customer by accepting delivery of sound or visual reproduction equipment warrants that he has or will obtain the appropriate Licence for the said performance playing or showing, prior to using the equipment for the said purpose

6.9.3 The customer agrees to indemnify HAWTHORN THEATRICAL LTD in respect of any claim for breach of Copyright caused by the transmission, recording, broadcasting, rebroadcasting of audio and visual projection on behalf of the Customer.

7. VIDEO CONFERENCE & VIDEO / VOICE OVER IP

When the Company provides audio conference and / or videoconference Equipment, the Company can only be responsible for Equipment provided by the Company, unless previously agreed upon. Communications with third parties via telephone or ISDN lines, communications on the Internet, or any other programs and use of accounts specific communications to carrying out the remote conference are the responsibility of the telecommunications provider, the Internet service provider, or failing that, the Customer. Any connection or connection maintenance problem is beyond the control of the Company and the Company cannot be held responsible, unless previously agreed upon.

8. GENERAL CONDITIONS

8.1. Power to Enter this Contract

8.1.1. The signatory to the contract warrants that they are duly authorised on the Customer’s behalf to enter into the contract and hereby personally indemnifies the Company against all losses and costs that may be incurred by the Company if this is not the case

8.1.2 Written acceptance of a quote and/or the provision of a purchase order shall constitute the forming of a contract

8.2. Payment and Interest

8.2.1. Customers who do not have an account open with the Company must pay a deposit of 50% when signing the quote, the remaining 50% being paid no later than 30 days before the date of the event (or the provision of Equipment in the case of a rental only). Any other agreement on the terms of payment must be approved in writing by the Company at least ten days before the Event. Non-payment may result in the non-supply of the Equipment and services specified in the quote.

8.2.2. Where payments are not made on the due date the Company will be entitled to interest on the amount that is overdue at JP Morgan Chase PLC base rate prevailing for the period for which such monies are overdue together with 4% calculated on a day-to-day basis compounded with quarterly rests.

8.2.3. The payment of such interest shall be without prejudice to any other rights or remedies of the Company

8.2.4. Any legal or other charges incurred in the recovery of money or Equipment shall be paid by the Customer

8.2.5. Notwithstanding any provision in these terms of business to the contrary the customer shall if required by the Company pay such sum on account of the hire charges or price for goods and or services as shall be agreed at the time of placing the order

8.3. Liability

8.3.1. The Company’s liability for any defect in the Equipment shall be limited to and in no case exceed: (a) any manufacturer’s warranty sold with the Equipment; or if there shall be none (b) replacement or repair of the defective Equipment; or (c) at the Company’s option a refund of the price

8.3.2. Consequential losses – Nothing in these terms and conditions shall make the Company liable for any consequential loss to the Customer including any expense liability loss claim or proceeding whatsoever caused by or arising out of the late delivery non delivery unsuitability incompatibility or unlawful repossession of the Equipment or any part thereof or any breakdown or stoppage of the same

8.3.3. LIMITATION OF LIABILITY: Notwithstanding any other provision, the Company’s aggregate liability to the Customer under any circumstances shall be strictly limited to an amount equal to the actual fees paid to the Company in connection with the Contract. Under no circumstances shall the Company’s liability exceed such fees.

8.4. Indemnification

The Customer and the Company each hereby agree to forever indemnify, defend and hold harmless the other for any and all claims, losses, costs (including reasonable attorney’s fees and costs), damages and/or injury to property and persons (including death) as a result of the negligent acts, errors or omissions of each party and their respective employees, agents, representatives and contractors.

8.5. Force Majeure

The Company’s failure to perform any term or condition of our contract as a result of conditions beyond its control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a failure to perform their part of the hire agreement.

8.6. Injury to Persons and Damage to Property

Subject to 8.3. above the Company shall not be liable for any loss other than that which directly arises from any injury to persons or damage to tangible property where and only to the extent that such injury or damage is caused by any defects in the Equipment and where such defect is caused by the negligence of the Company

8.7. Rights Reserved

8.7.1. Any failure by the Company to enforce any or all of these conditions shall not be construed as a waiver of any of the Company rights hereunder

8.7.2. If any term in these conditions shall be held invalid such invalidation shall not affect the validity of the remaining terms

8.8. Terms of Contract

These conditions have effect in substitution for and to the exclusion of any condition put forward by the Customer

8.9. Delivery and Carriage

8.9.1. All times quoted or stated for deliveries are approximate only shall not be liable for any delay in delivery of the Equipment howsoever caused.

8.9.2. Hire charges or sale prices do not include carriage. Any expenses incurred by the Company in delivery or recovering Equipment or attempting the same will be paid by the Customer

8.9.3. Where carriage charges are quoted by the Company such charges will include only for the time to load or unload alongside the Company vehicle at the address specified by the Customer. Further time or attendance will be paid for by the Customer

8.9.4 The Company reserves the right to recharge additional costs of delivery and collection including, but not restricted to, parking fines, waiting time and toll charges.

8.9.5 The Company shall not be held liable for any damage incurred to a customer vehicle when loading\unloading or for the safe and secure loading of their vehicle.

8.9.6 Where the Customer makes arrangements for the delivery and collection of Equipment, the Customer will be liable for loss or damage which occurs during transport of the Equipment.

8.10. Personal Data

Personal data collected from Customers is subject to computer processing by Encore. They are recorded in the Customer’s file and are essential for the processing of his order. This information and

personal data are also kept for security purposes, in order to comply with legal and regulatory obligations. They will be kept as long as necessary for the execution of orders and any applicable guarantees. The data controller is the Company. Access to personal data will be strictly limited to the employees of the data controller, authorised to process it because of their functions. The information collected may possibly be communicated to third parties linked to the Company by contract for the execution of subcontracted tasks, without the authorisation of the Customer being necessary.

As part of the performance of their services, third parties have only limited access to the data and are obliged to use it in accordance with the provisions of the applicable legislation on the protection of personal data. Apart from the cases stated above, the Company refrains from selling, renting, assigning or giving access to third parties to the data without the Customer’s prior consent, unless it is forced to do so for legitimate reasons.

If the data is to be transferred outside the EU, the Customer will be informed and the guarantees taken in order to secure the data (for example, adhesion of the external service provider to the “Privacy Shield”, adoption of validated protection clauses by the CNIL, adoption of a code of conduct, obtaining a CNIL certification, etc.) will be specified.

In accordance with applicable regulations, the Customer has a right of access, rectification, erasure, and portability of data concerning him, as well as the right to oppose the processing for legitimate reasons, rights which he can exercise by contacting the data controller at their registered office. In the event of a complaint, the Customer may send a complaint to the relevant authority.

8.11. Copyright

8.11.1. The Company notifies the Customer that playing or showing copyright material in circumstances where the Customer or anyone authorised by him does not hold the appropriate licence of the copyright holder, he will infringe copyright and may become liable in damages for so doing

8.11.2. The Customer by accepting delivery of sound or visual reproduction Equipment warrants that he has or will obtain the appropriate licence for the said performance playing or showing, prior to using the Equipment for the said purpose

8.11.3 The customer agrees to indemnify the Company in respect of any claim for breach of copyright caused by the transmission, recording, broadcasting, rebroadcasting of audio and visual projection on behalf of the Customer.

8.12. Confidentiality

All quotes, contracts, plans and specifications provided by the Company to the Customer are confidential and are not to be passed to any third party for a competitive bid or any other purpose.