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Terms and Conditions

 

HotCam Ltd Terms & Conditions

The client’s attention is drawn in particular to the provisions of clause 12.

1.               Interpretation

1.1             Definitions:

Business Day

a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions

the terms and conditions set out in this document as amended from time to time in accordance with clause 14.4.

Commencement Date

the date that the Client takes Delivery of the Equipment.

Contract

the contract between HotCam and the Client for the provision and hiring of the Equipment in accordance with these Conditions.

Client

the person or firm who hires the Equipment from HotCam.

Delivery

the transfer of physical possession of the Equipment to the Client at the Site.

Deposit

the deposit amount set out in the Payment Schedule.

Equipment

the items of equipment listed in the Order (or any part of them), all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it/them.

Force Majeure Event

an event or circumstance beyond a party's reasonable control.

HotCam

HotCam Ltd (registered in England and Wales with company number 037999736) whose registered office is located at 18-22 Telford Way, Westway Industrial Estate, London, W3 7XS.

Order

the Client's order for the Equipment, as set out in the Client's purchase order form, the Client's written acceptance of HotCam's quotation, or overleaf, as the case may be.

Payment Schedule

the payment schedule within the Order and/or HotCam’s quotation which sets out the sums payable under the Contract.

Rental Payments

the payments made by or on behalf of Client for hire of the Equipment.

Rental Period

the period of hire as agreed and set out in the Order.

Site

Such location as is stipulated in the Order or as is agreed between the parties, acting reasonably.

Specification

any specification for the Equipment, including any related plans and drawings, that is agreed in writing by the Client and HotCam.

Total Loss

due to the Client’s default the Equipment is, in HotCam’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated or not returned pursuant to these Conditions.

VAT

value added tax chargeable under the Value Added Tax Act 1994.

1.2             Interpretation:

1.2.1        a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.2.2        any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

1.2.3        a reference to writing or written includes emails.

1.2.4        A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.

1.2.5        Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

2.               Basis of Contract

2.1             These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2             The Order constitutes an offer by the Client to hire the Equipment in accordance with these Conditions. The Client is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Client are complete and accurate and that the proposed Equipment has the necessary settings and technical specifications as are required by the Client.

2.3             The Order shall only be deemed to be accepted when HotCam issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4             The Client waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Client that is inconsistent with these Conditions.  The Client is further acknowledging by placing the Order that this is a business transaction which it is freely entering into and that these Conditions include clauses that limit and/or exclude the liability of HotCam in certain circumstances.

2.5             Any samples, drawings, descriptive matter or advertising produced by HotCam and any descriptions or illustrations contained in HotCam's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Equipment referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6             A quotation for the Equipment given by HotCam shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.

2.7             Once the Contract is in existence, where the Client wishes to change the scope of the Contract or Equipment under hire;

2.7.1        HotCam shall, within a reasonable time (and they shall endeavour to respond in any event not more than 2 Business Days after receipt of the Client’s request), but without further charge to the Client, provide a written estimate to the Client of:

(a)       the likely time required to implement the change;

(b)       any necessary variations to HotCam’s charges or the Rental Payments as a result of the change; and

(c)       any other impact of the change on the terms of the Contract;

2.7.2        if the Client does not wish to proceed, there shall be no change to the Contract; and

2.7.3        if the Client wishes HotCam to proceed with the change, HotCam shall do so after agreement on the necessary variations to its charges, the Contract and any other relevant terms of Conditions to take account of the change.

3.               Equipment Hire

3.1             Upon creation of the Contract, HotCam shall hire the Equipment to the Client subject to these Conditions.

3.2             HotCam shall not, other than in the exercise of its rights under these Conditions or applicable law, interfere with the Client’s quiet possession of the Equipment.

3.3             HotCam reserves the right to amend the specification of the Equipment if required by any applicable statutory or regulatory requirements.

4.               Rental Period

The Rental Period starts on the Commencement Date and shall continue for the agreed period of time as stipulated in the Order and accepted by HotCam unless the Contract is terminated earlier in accordance with these Conditions.

5.               Delivery

5.1             HotCam shall ensure that:

5.1.1        each delivery of the Equipment is accompanied by a delivery note that shows the date of the Order, all relevant Client and HotCam reference numbers, the type and quantity of the Equipment (including the code number of the Equipment, where applicable), special storage instructions (if any) and, if the Equipment are being delivered by instalments, the outstanding balance of Equipment remaining to be delivered; and

5.1.2        if HotCam does not require the Client to return any packaging materials to HotCam, that fact is clearly stated on the delivery note. Otherwise, the Client shall return or, where previously agreed, shall make any such packaging materials available for collection at such times as HotCam shall reasonably request. Returns of packaging materials shall be at the Client’s expense unless otherwise agreed.

5.2             Subject to clause 5.3, the Client shall collect the Equipment from the Site or such other reasonable location as may be advised by HotCam prior to delivery as detailed in the Order.  Unless otherwise agreed in writing, the Client shall be responsible for loading, transporting and unloading the Equipment and all costs associated with the collection.  The Client’s representative shall be given the opportunity to inspect and check that the Equipment is in working order and, unless otherwise stated, shall be deemed to accept the quality of the Equipment upon loading the Equipment on its transportation. The Client shall collect the Equipment during HotCam’s business hours and shall call and arrange a pre-agreed collection time with HotCam during the following periods: Monday to Friday 9am to 7pm.  Subject to additional fees, out of office hour collections can be arranged with prior agreed consent from HotCam and in case of emergencies please contact 020 8742 1888.

5.3             In the event that the parties have agreed and detailed in the Order that HotCam shall deliver the Equipment to the Client, HotCam shall deliver the Equipment to the location set out in the Order or such other location as the parties may agree, acting reasonably (Delivery Location) at any time after HotCam notifies the Client that the Equipment is ready.  Unless otherwise agreed, the Client shall be responsible for all reasonably costs incurred in relation to Delivery to the Delivery Location including transportation charges, taxes, duties, levies, broker’s fees, bonds, insurance, and any other costs incurred during transit. No person other than a person authorised by HotCam may in any circumstances drive any vehicles used and/or supplied by HotCam. The Client shall assess and inspect and check that the Equipment is in working order as soon as is reasonably practicable following Delivery and, unless otherwise stated within 24 hours, shall be deemed to accept the quality of the Equipment upon Delivery.

5.4             In relation to Delivery pursuant to clause 5.2, Delivery is deemed completed on the collection of the Equipment by the Client from the Site upon the arrival of the Client’s representative at the Site.  In the event that an alternative location for Delivery is agreed pursuant to clause 5.3, Delivery is deemed completed on the arrival of HotCam’s delivery provider at the Delivery Location, or the arrival of the Equipment at the Delivery Location, whichever is the sooner.

5.5             Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. HotCam shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event, the Client’s failure to collect the Equipment or the Client's failure to provide HotCam with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.

5.6             If HotCam fails to deliver the Equipment, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement Equipment of similar description and quality in the cheapest market available, less the price of the Equipment. HotCam shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a Force Majeure Event, the Client’s failure to collect the Equipment or the Client's failure to provide HotCam with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.

5.7             If the Client fails to accept delivery of the Equipment, then, except where such failure or delay is caused by a Force Majeure Event or HotCam's failure to comply with its obligations under the Contract:

5.7.1        delivery of the Equipment shall be deemed to have been completed at 9.00 am on the date stipulated within the Order for the date for Delivery, or if later, the day on which HotCam notified the Client that the Equipment was ready; and

5.7.2        HotCam may rehire or otherwise dispose of part or all of the Equipment to other customers.  In such circumstances HotCam cannot guarantee that such Equipment will be readily available and any requests by the Client for later delivery of such Equipment shall at all times be completely subject to the availability of such Equipment in HotCam’s inventory for the requested periods of hire.

5.8             HotCam may deliver the Equipment by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.

6.               Quality

6.1             HotCam warrants that on delivery the Equipment shall:

6.1.1        conform in all material respects with their description; and

6.1.2        be free from material defects in design, material and workmanship.

6.2             Subject to clause 6.3, if:

6.2.1        the Client gives notice in writing to HotCam within 24 hours of receipt that some or all of the Equipment do not comply with the warranty set out in clause 6.1;

6.2.2        HotCam is given a reasonable opportunity of examining such Equipment; and

6.2.3        the Client (if asked to do so by HotCam) returns such Equipment to HotCam's place of business at the Client's cost,

HotCam shall, at its option, repair or replace the defective Equipment, or refund the Rental Payments of the defective Equipment in full.

6.3             HotCam shall not be liable for the Equipment's failure to comply with the warranty set out in clause 6.1 in any of the following events:

6.3.1        the Client makes any further use of such Equipment after giving notice in accordance with clause 6.2;

6.3.2        the defect arises because the Client failed to follow HotCam's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Equipment or (if there are none), the manufacturer’s guidance and instructions manuals in relation to the Equipment and good trade practice regarding the same;

6.3.3        the defect arises because the Client inserted and/or used other equipment (not supplied by HotCam) in the operation and use of the Equipment (including, but not limited to, external storage or memory devices);

6.3.4        the defect arises as a result of HotCam following any drawing, design or Specification supplied by the Client;

6.3.5        the Client alters or repairs such Equipment without the written consent of HotCam;

6.3.6        the defect arises as a result of fair wear and tear, misuse, wilful damage, negligence, or abnormal storage or working conditions; or

6.3.7        the Equipment differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements or the Client failed to check and ensure that the Equipment had the necessary settings and/or technical specifications that the Client required.

6.4             Except as provided in this clause 6, HotCam shall have no liability to the Client in respect of the Equipment' failure to comply with the warranty set out in clause 6.1.

6.5             The terms implied by sections 13 to 15 of the Sale of Equipment Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

6.6             The Client acknowledges and agrees that it is impossible to guarantee that footage, data or memory won’t be lost or corrupted and HotCam shall have no liability to the Client in respect of any data, including but not limited to failed recording and/or lost/corrupted memory, data or footage, and that this shall remain the responsibility of the Client pursuant to clause 9.1.

6.7             These Conditions shall apply to any repaired or replacement Equipment supplied by HotCam.

7.               Title and Risk

7.1             The Equipment shall at all times remain the property of HotCam, and the Client shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these Conditions).

7.2             The risk in the Equipment shall pass to the Client as soon as it leaves HotCam’s storage facility (even where the Site for Delivery is agreed between the parties to be the Client’s property or other remote location), or upon the transfer of physical possession, whichever is the sooner. The Equipment shall remain at the sole risk of the Client during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Client (Risk Period) until such time as the Equipment is redelivered to HotCam. During the Rental Period and the Risk Period, the Client shall, at its own expense, obtain and maintain the following insurances:

7.2.1        insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as HotCam may from time to time nominate in writing;

7.2.2        insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as HotCam may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and

7.2.3        insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as HotCam may from time to time consider reasonably necessary and advise to the Client.

7.3             Until the Equipment is returned to HotCam and at all times during the Risk Period the Client shall:

7.3.1        store the Equipment separately from all other equipment held by the Client so that they remain readily identifiable as HotCam's property;

7.3.2        not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;

7.3.3        maintain the Equipment in satisfactory condition;

7.3.4        notify HotCam immediately if it becomes subject to any of the events listed in clause 10.1; and

7.3.5        give HotCam such information relating to the Equipment as HotCam may require from time to time.

7.4             All insurance policies procured by the Client shall be endorsed to provide HotCam with at least ten (10) Business Days' prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon HotCam’s request name HotCam on the policies as a loss payee in relation to any claim relating to the Equipment. The Client shall be responsible for paying any deductibles due on any claims under such insurance policies.

7.5             The Client shall give immediate written notice to HotCam in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Client’s possession or use of the Equipment.

7.6             If the Client fails to effect or maintain any of the insurances required under these Conditions and/or the Contract, HotCam shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Client.

7.7             The Client shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to HotCam and proof of premium payment to HotCam to confirm the insurance arrangements.

8.               Rental Payments, Deposits & Cancellations

8.1             The Client shall pay the Rental Payments to HotCam in accordance with the Payment Schedule. The Rental Payments shall be paid in sterling and shall be made by BACs or wire transfer to such account is nominated by HotCam from time to time. HotCam do not accept payment by credit card.

8.2             The Rental Payments:

8.2.1        are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Client at the rate and in the manner from time to time prescribed by law; and

8.2.2        excludes the costs and charges of packaging, insurance and transport of the Equipment, which shall be invoiced to the Client.

8.3             Where stipulated within the Order or required by HotCam pursuant to the terms of HotCam’s quote, the Deposit is a deposit against default by the Client of payment of any Rental Payments or any loss of or damage caused to the Equipment. The Client shall, on the date of the Contract, pay a deposit as set out in the Order to HotCam. If the Client fails to make any Rental Payments in accordance with the Payment Schedule, or causes any loss or damage to the Equipment (in whole or in part), HotCam shall be entitled to apply the Deposit against such default, loss or damage. The Client shall pay to HotCam any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within five (5) Business Days of the end of the Rental Period.

8.4             HotCam may invoice the Client for Rental Payments in accordance with the Payment Schedule, or where there is no specific Payment Schedule on or at any time after the completion of Delivery.

8.5             Where any invoice relates to a Rental Payment in accordance with the Payment Schedule, the Client shall ensure that payment is made on the dates stipulated within the Payment Schedule. The Client shall pay all other invoices submitted by HotCam in full and in cleared funds within 30 calendar days of the date of the invoice. All payments shall be made to the bank account nominated in writing by HotCam. Time for payment is of the essence.

8.6             If the Client fails to make any payment due to HotCam under the Contract by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.

8.7             In the event that the Client fails to return the Equipment at the end of the Rental Period before 9.30am on the date for return as stipulated in the Order a full day’s hire may be charged by HotCam to the Client in relation to the Equipment in question for that day and each subsequent days during which the Equipment is not returned in accordance with the rates as detailed in the Payment Schedule or pursuant to HotCam’s standard Equipment day rates published from time to time.

8.8             The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). HotCam may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Client against any amount payable by HotCam to the Client.

8.9             If the Client wishes to cancel any Order for Equipment, or where relevant reduce the amount of Equipment listed within the Order, the Client shall immediately notify HotCam of such cancellation or reduction in writing and those cancellation charges set out and listed in clauses 8.10 and 8.11 shall apply and be payable by the Client to HotCam who shall be entitled to raise an invoice for payment of the relevant cancellation fees in accordance with this clause 8.

8.10          Subject at all times to clause 8.11, in the event that the Client wishes to cancel, or where relevant reduce the amount of Equipment ordered, the following charges shall apply:

8.10.1     Where notice of cancellation (or where relevant reduction) is received more than 5 Business Days prior to estimated Delivery there shall be no charges payable by the Client;

8.10.2     Where notice of cancellation (or where relevant reduction) is received more than 2 Business Days up to and including 5 Business Days prior to estimated Delivery the Client shall pay 25% of the Rental Payments (or where it relates to a reduction, 25% of the Rental Payments attributable to removed items);

8.10.3     Where notice of cancellation (or where relevant reduction) is received 2 Business Days or less prior to estimated Delivery the Client shall pay all of the Rental Payments (or where it relates to a reduction, 100% of the Rental Payments attributable to removed items).

8.11          The Client acknowledges that upon entry into the Contract, HotCam may immediately incur third party charges in relation to the provision and/or supply of the Equipment and the Client shall at all times be responsible for and shall pay to HotCam such third party costs reasonably incurred by HotCam in relation to the Contract. In addition, the Client shall be responsible at all times for all additional costs, expenses, charges, levies, taxes or any other items incurred by HotCam due to any delay caused by any instructions of the Client or failure of the Client to give HotCam adequate or accurate information or instructions.

9.               Client Responsibilities

9.1             The Client shall during the term of the Contract and at any time while these Conditions are applicable:

9.1.1        ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by HotCam, or where there aren’t any, in accordance with the manufacturers user guide and general good practice.  In the event that the Client chooses to film in extreme conditions (including humid, hot, cold or dangerous locations) it does so at its own risk and without any warranty or assurance that the Equipment shall be capable of operating in such conditions. The Client shall also use all reasonable endeavours to minimise any potential or actual equipment performance issues including liability insurance cover for loss of footage, faulty rushes and any potential delays in relation to recording schedules, crewing, production and post-production issues;

9.1.2        take such steps (including compliance with all safety and usage instructions provided by HotCam and/or the manufacturer of the Equipment) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used or cleaned by a person at work;

9.1.3        maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall be responsible for the cost of making good any damage to the Equipment, such repairs and assessment to be completed by HotCam in accordance with clause 6.2 and 11.1.2;

9.1.4        make no alteration to or attempt to make any repairs to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of HotCam unless the component(s) is/are consumable items only and replaced immediately (or if removed in the ordinary course of use as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in HotCam immediately upon installation;

9.1.5        keep HotCam fully informed of all material matters relating to the Equipment;

9.1.6        at all times keep the Equipment in the possession or control of the Client and keep HotCam informed of its location.  The Client shall not, without the prior written consent of HotCam and subject to such conditions as HotCam may stipulate, take the Equipment outside of England;

9.1.7        permit HotCam or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon the Client’s premises or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;

9.1.8        maintain operating records of the Equipment and make copies of such records readily available to HotCam, together with such additional information as HotCam may reasonably require;

9.1.9        not, without the prior written consent of HotCam, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;

9.1.10     not without the prior written consent of HotCam, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Client shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify HotCam against all losses, costs or expenses incurred as a result of such affixation or removal;

9.1.11     not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of HotCam in the Equipment and, where the Equipment has become affixed to any land or building, the Client must take all necessary steps to ensure that HotCam may enter such land or building and recover the Equipment both during the term of these Conditions and/or the Contract and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of HotCam of any rights such person may have or acquire in the Equipment and a right for HotCam to enter onto such land or building to remove the Equipment;

9.1.12     not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Client shall notify HotCam and the Client shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify HotCam on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;

9.1.13     not use the Equipment for any unlawful purpose;

9.1.14     ensure that at all times the Equipment remains identifiable as being HotCam's property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;

9.1.15     deliver up the Equipment at the end of the Rental Period or on earlier termination of the Contract to the Site or at such address as HotCam requires, or if necessary allow HotCam or its representatives access to the Client’s premises or any premises where the Equipment is located for the purpose of removing the Equipment.  The Client shall ensure that the Equipment is returned in a clean state and acknowledges that where it fails to comply with this clause HotCam shall be entitled to clean the Equipment and charge to the Client all reasonable cleaning costs incurred; and

9.1.16     not do or permit to be done anything which could invalidate the insurances referred to in clause 7.

9.2             The Client acknowledges that HotCam shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Client or its officers, employees, agents and contractors, and the Client undertakes to indemnify HotCam on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Client to comply with the terms of these Conditions.  Upon return of the Equipment to HotCam in accordance with these Conditions, HotCam shall undertake a technical evaluation and quality check in relation to the Equipment to assess the condition of each piece of Equipment and, where the Client has failed to comply with the terms of these Conditions, shall be entitled to apply the Deposit (if relevant) against such default, loss or damage, or (where no Deposit is held) the Client shall pay to HotCam such sums within ten (10) Business Days of receipt of an invoice for such losses, liabilities, claims, damages, costs or expenses pursuant to this clause.  The Client acknowledges and agrees that in the event of a Total Loss, such cost shall be for the replacement of the damaged item of Equipment with an equivalent current model.

10.             Termination

10.1          Without limiting its other rights or remedies, HotCam may terminate this Contract with immediate effect by giving written notice to the Client if:

10.1.1     the Client commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so;

10.1.2     the Client repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;

10.1.3     the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

10.1.4     the Client suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

10.1.5     the Client's financial position deteriorates to such an extent that in HotCam's opinion the Client's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

10.2          Without limiting its other rights or remedies, HotCam may suspend provision of the Equipment under the Contract or any other contract between the Client and HotCam if the Client becomes subject to any of the events listed in clause 10.1.1 to clause 10.1.5, or HotCam reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.

10.3          Without limiting its other rights or remedies, HotCam may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.

10.4          The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.

10.5          On termination of the Contract for any reason the Client shall immediately pay to HotCam all of HotCam's outstanding unpaid invoices and interest.

10.6          Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.

10.7          Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

11.             Consequences of Termination

11.1          Upon termination of the Contract, however caused:

11.1.1     HotCam’s consent to the Client’s possession of the Equipment shall terminate and HotCam may, by its authorised representatives, without notice and at the Client's expense, retake possession of the Equipment and for this purpose may enter the Client’s premises or any premises at which the Equipment is located; and

11.1.2     without prejudice to any other rights or remedies of HotCam, the Client shall pay to HotCam on demand:

(a)       all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 8.6;

(b)       any costs and expenses incurred by HotCam in recovering the Equipment and/or in collecting any sums due under these Conditions and/or the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).

11.2          Upon termination of the Contract, any other repudiation of the Contract by the Client which is accepted by HotCam or pursuant to clause 10.4, without prejudice to any other rights or remedies of HotCam, the Client shall pay to HotCam on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the Contract had continued from the date of such demand to the end of the Rental Period.

11.3          The sums payable pursuant to clause 1.1 shall be agreed compensation for HotCam's loss and shall be payable in addition to the sums payable pursuant to clause 11.1.2. Such sums may be partly or wholly recovered from any Deposit.

11.4          Termination or expiry of a Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract and these Conditions which existed at or before the date of termination or expiry.

12.             Limitation of Liability

12.1          Nothing in these Conditions shall limit or exclude HotCam's liability for:

12.1.1     death or personal injury caused by its own negligence;

12.1.2     fraud or fraudulent misrepresentation;

12.1.3     any matter in respect of which it would be unlawful for HotCam to exclude or restrict liability.

12.2          Subject to clause 12.1:

12.2.1     HotCam shall under no circumstances whatsoever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of revenue, loss of data, recordings and/or footage, loss of business, loss of goodwill or injury to reputation, or any other indirect or consequential loss arising under or in connection with the Contract (in each case whether foreseeable or not); and

12.2.2     HotCam's total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Rental Payments.

12.3          These Conditions sets forth the full extent of HotCam’s obligations and liabilities in respect of the Equipment and its hiring to the Client. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding HotCam except as specifically stated in the Contract. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded.

13.             Force Majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 2 weeks, the party not affected may terminate this Contract by giving 2 weeks written notice to the affected party.

14.             General

14.1          Assignment and other dealings.

14.1.1     HotCam may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

14.1.2     The Client may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of HotCam.

14.2          Confidentiality.

14.2.1     Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, clients of the other party or of any member of the group to which the other party belongs, except as permitted by clause 14.2.2. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

14.2.2     Each party may disclose the other party's confidential information:

(a)       to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 14.2; and

(b)       as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

14.2.3     No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

14.3          Entire agreement.

14.3.1     This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

14.3.2     Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract or these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract of these Conditions.

14.4          Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14.5          Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

14.5.1     waive that or any other right or remedy; nor

14.5.2     prevent or restrict the further exercise of that or any other right or remedy.

14.6          Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

 

 

14.7          Notices.

14.7.1     Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.

14.7.2     A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.7.1; if sent by pre-paid first class post or other next working day delivery service, at 10.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.

14.7.3     The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

14.8          Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.

14.9          Further Assurance. Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to these Conditions and/or the Contract.

14.10       Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

14.11       Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.