DIRECT PHOTOGRAPHIC S.L – TERMS OF BUSINESS

In these Terms of Business, “Direct Palma” means Direct Photographic S.L and “Client” means any person, firm or company who requests, rents, hires and/or purchases equipment, studio facilities, services and/or consumables from Direct Palma. Direct Photographic S.L incorporates the businesses of Direct Palma.

1 APPLICATION OF THESE TERMS

1.1 These Terms of Business govern the supply of all equipment, studio facilities, services and consumables by Direct Palma. All other terms and conditions (including without limitation any terms and conditions of the Client) are excluded.
1.2 Any valid amendment or variation to these Terms of Business must be in writing and signed by a director of Direct Palma.

2.1 The Client may order equipment, studio facilities, services and/or consumables either in writing (including email) or verbally, by telephone or in person. Where reasonably practicable, Direct Palma shall confirm orders in writing.
2.2 All orders for equipment, services and/or consumables shall be binding on the Client whether or not they are confirmed by Direct Palma.
2.3 Direct Palma shall not be responsible for any errors made (by either party) in connection with verbal orders.
2.4 Direct Palma shall be entitled to assume that any person placing and/or signing an order on behalf of the Client is authorised to do so.
2.5 Direct Palma reserves the right in its absolute discretion to refuse to accept any order.
2.6 Once an order has been accepted by Direct Palma, Direct Palma shall supply the equipment, studio facilities, services and/or consumables ordered in accordance with these Terms of Business.

3.1 All prices and hire charges shall be as quoted by Direct Palma or calculated by reference to Direct Palma’s current price lists as applicable from time to time. All prices exclude delivery and IVA
3.2 All quotations shall (subject to clause 3.3) remain valid for a period of 30 days from the date on which they are first given, provided that Direct Palma shall be entitled to vary any quotation if the Client’s order differs from the requirements and specifications on which such quotation was based. The provision of a quotation by Direct Palma to the Client does not guarantee the availability of the equipment, studio facilities, services and/or consumables specified in such quotation, whether at the time of the quotation or at the time the Client wishes to place its order.
3.3 Prices and hire charges specified on Direct Palma’s price lists and/or quotations provided by Direct Palma may be subject to change from time to time without warning where necessary due to any variations in Direct Palma’s costs, such as third party supplier costs and/or labour costs.
3.4 Where hire charges include a charge for the provision of personnel, overtime rates may apply during certain hours or after certain periods of time, in accordance with Direct Palma’s applicable price list(s). Travel, subsistence and accommodation expenses of Direct Palma personnel will be charged to the Client, in addition to applicable day rates and hire charges.

4.1 If Direct Palma has accepted an application from the Client to open an account with Direct Palma (which decision shall be in Direct Palma’s absolute discretion), the Client shall pay each invoice within 30 days of the invoice date. If the Client pays any invoice using a credit card, the Client shall be liable to pay an additional surcharge of 3% of the invoice amount. In the event of late payment of any invoice, Direct Palma reserves the right to withdraw credit facilities at any time without prior notice. Direct Palma reserves the right not to provide account facilities without disclosing a reason. Clients should be aware that account applications will be credit checked.
4.2 If the Client does not have an account with Direct Palma, the Client shall pay Direct Palma for all equipment, studio facilities, services and consumables as set out below. Payment may be made by cash, cheque, bank transfer or major credit or debit card:

4.2.1 hire charges for equipment, together with a deposit, must be paid in full prior to the commencement of the hire period. Direct Palma shall refund the deposit in full to the Client after the end of the hire period, except in the circumstances set out in clauses 11.24 and 11.33;
4.2.2 all consumables must be paid for at the time of ordering.

4.3 All sums payable to Direct Palma shall be payable in euros , in full, without deduction, withholding or set-off. All prices and delivery charges are quoted exclusive of IVA.
4.4 If the Client is overdue with any payment hereunder, then without prejudice to Direct Palma’s other rights or remedies:

4.4.1 the Client shall be liable to pay interest on the overdue amount at an annual rate of 5% above the prevailing base rate of Sa Nostra bank, which interest shall accrue on a daily basis from the date payment becomes due until Direct Palma has received payment of the overdue amount together with all interest that has accrued;
4.4.2 the Client shall reimburse Direct Palma for any costs incurred by Direct Palma in taking steps to recover the overdue payment; and
4.4.3 Direct Palma shall have the right, at its option, to suspend delivery of any services and/or consumables and/or to require the Client to cease using equipment and/or studio facilities until full payment is received.

4.5 The Client shall be responsible for all customs and other duties and all related costs and expenses payable on any international transaction.

5.1 The Client warrants that no copyright or other intellectual property right (including without limitation moral rights) of any third party, now existent or hereafter created, will be infringed by virtue of:

5.1.1 the Client’s use of Direct Palma’s equipment;
5.1.2 any services to be carried out by Direct Palma at the request of the Client;

5.2 The Client agrees to indemnify Direct Palma against all losses, damages, claims or expenses (including legal costs on an indemnity basis) which Direct Palma may incur by virtue of any breach of the warranties in clauses 5.1 or 5.2 or in the event of any claim (whether or not proceedings are issued) by any party against Direct Palma or its employees, agents or contractors, that any third party copyright or other intellectual property right (including without limitation moral rights) has been infringed by virtue of anything done by, on behalf of or at the request of the Client.
5.3 The Client warrants that no materials or data deposited with Direct Palma shall contain any material which is defamatory, blasphemous or obscene, or which is otherwise contrary to any applicable laws, regulations or codes of practice.
Courier Service / Delivery
5.4 The Client must sign for delivered work, or Direct Palma will not be held responsible for any losses arising from the delivery.
5.5 Whilst Direct Palma will make every effort to collect the Client’s materials and deliver work as quickly as possible, it will not be liable for any losses arising from delays in delivery or collection.

6.1 Direct Palma’s liability in respect of lost or damaged film shall be limited to the replacement cost of the film and Direct Palma shall not be liable for the cost of retaking or re-shooting the material contained on such film. It shall be for the Client to insure against such loss or damage.
6.2 Direct Palma’s liability in respect of faulty hire equipment shall be limited to the adjustment, repair or replacement of such equipment and/or the refund of the applicable hire charges in accordance with clauses 11.21 to 11.23 and, for the avoidance of doubt, Direct Palma shall not be liable for the cost of retaking or re-shooting any material which is not captured or is lost, or for any other costs or losses incurred by the Client, as a result of the equipment being faulty.
6.3 Subject to the provisions of this clause 7, Direct Palma’s maximum aggregate liability under or in connection with any order shall not exceed the total sums payable by the Client to Direct Palma in connection with the relevant order.
6.4 Subject to clause 7.5, Direct Palma shall not be liable for any loss of income or profits, loss of contracts or for any indirect or consequential loss or damage of any kind howsoever arising.
6.5 Nothing in these Terms of Business shall exclude or in any way limit Direct Palma’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent that the same may not be excluded or limited as a matter of law.
6.6 Nothing in this Agreement will affect any consumer’s statutory rights.

7.1 Direct Palma shall not be liable for any delay in performing or failure to perform its obligations hereunder to the extent that such delay or failure results from any cause or circumstance beyond its reasonable control, including without limitation any inability of Direct Palma to secure labour, materials, supplies or transport, scarcity of fuel, power or components, breakdown of machinery, fire, storm, flood, acts of God, internet failure, war, civil disturbance, strikes, lockouts or industrial action (each an “event of force majeure”). If any event of force majeure occurs, the date(s) for performance of Direct Palma’s affected obligation(s) shall be postponed for as long as is made necessary by the event of force majeure. If any event of force majeure continues for a period of or exceeding 60 days, the Client may cancel the affected order (or the affected part(s) of it) by written notice to Direct Palma.

8.1 Direct Palma reserves the right to change opening times.
8.2 Time shall not be of the essence with respect to the performance of any of Direct Palma’s obligations hereunder.
8.3 The Client may not assign, sub-license or sub-contract any of its rights or obligations under these Terms of Business without the prior written consent of Direct Palma.
8.4 No person shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms of Business.
8.5 These Terms of Business constitute the entire agreement and understanding between the parties with respect to their subject matter and supersede any prior agreement, understanding or arrangement between the parties, whether oral or in writing, with respect to the same. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in communications between the parties except as set out in these Terms of Business. Neither party shall have any remedy in respect of any untrue statement made to it upon which it has relied (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided in these Terms of Business.

9 ADDITIONAL TERMS APPLICABLE TO THE HIRE OF EQUIPMENT AND/OR STUDIO FACILITIES

The Client’s attention is drawn in particular to the cancellation terms applicable to all rental and hire arrangements (see clauses 9.25 to 9.29 below)

Hire Period
9.1 The hire period for equipment shall commence:

9.1.1 upon delivery to or collection by the Client of the equipment; or
9.1.2 where delivery or collection of the equipment is delayed due to any act or omission of the Client or due to Direct Palma’s representatives being unable to gain access to the delivery address nominated by the Client, on the date on which delivery is first attempted or collection should have taken place, and shall continue for the period agreed between the parties when the Client ordered the equipment, unless terminated sooner by Direct Palma in accordance with clause 9.30 below.

9.2 The minimum hire period for equipment shall be one day.
9.3 Hire periods may be extended by agreement between the parties, subject always to the availability of the equipment and/or studio facilities and the Client’s payment (or agreement to pay) of all additional hire charges.
9.4 All hire periods and production schedules should include adequate provision for equipment set-up time.
9.5 .
9.6 Hire charges shall be payable for the entirety of the hire period, whether or not the relevant equipment and/or studio facilities is/are in use for the whole of such hire period.
Delivery of Equipment
9.7 The Client may collect equipment from Direct Palma or have it delivered by Direct Palma for an additional delivery charge.
9.8 Where Direct Palma has agreed to deliver equipment to the Client, equipment shall be delivered to the delivery address specified by the Client. If Direct Palma’s representative(s) is/are unable to gain access to the delivery address and/or if delivery is delayed due to any act or omission of the Client, the Client shall be responsible for any additional delivery costs incurred by Direct Palma as a result of rearranging delivery and shall pay hire charges as if the delivery of the equipment had not been so delayed.
9.9 Title to all equipment shall remain with Direct Palma (or Direct Palma’s licensors) at all times and, save for the right to use such equipment during the agreed hire period, the Client shall acquire no right, title or interest in or to the same.
9.10 Immediately upon receipt or collection of any equipment, the Client shall inspect and satisfy itself as to its condition. If the Client fails to notify Direct Palma, promptly after receipt or collection, of any defect in or problem with the equipment and/or if the Client starts to use the equipment, the Client shall be deemed to have confirmed that the equipment is in a satisfactory condition upon delivery or collection.
Damage Waiver
9.11 Risk in all equipment shall pass to the Client upon delivery to or collection by the Client. The Client shall be responsible, for the duration of the hire period, for the cost of insuring all hired equipment.
9.12 Unless the Client agrees to insure the equipment in accordance with clause 9.15 below, the Client shall be charged, in addition to the hire charges, a “Damage Waiver” fee of 10% of the total applicable hire charges. The following Damage Waiver terms will then apply in the event of damage to or loss of the equipment:

9.12.1 Geographical Limits - Europe, subject to prior declaration of where the equipment is to be taken;
9.12.2 Maximum hire period - two months, longer subject to negotiation;
9.12.3 Excess - first £250 each and every loss, for which the Client shall be responsible;
9.12.4 Exclusions
(a) damage caused by corrosion, excessive heat, dampness or physical mistreatment;
(b) damage occasioned by or resulting from nationalisation, confiscation, requisition, seizure or destruction by the government or any public authority;
(c) property damaged as a result of its undergoing any process including testing, repairing, adjusting, servicing or maintenance operation;
(d) damage arising from:
riot or civil commotion occurring elsewhere than in the United Kingdom, the Channel Islands or the Isle of Man;
breakage of flash tubes and/or bulbs;
(e) damage to glass and other fragile or brittle articles unless such damage is caused by fire, theft or as a result of an accident to the vehicle in which the article(s) is/are being transported;
(f) theft from unoccupied vehicles;
(g) damage to property carried on the outside of vehicles unless as a result of overturning or collision;
(h) damage or loss as a result of negligence;
(i) consequential loss of any description.

9.13 The Client acknowledges and accepts the above Damage Waiver terms and agrees that it shall not, for the duration of the hire period, do or omit to do any act or thing which would or may vitiate or invalidate the Damage Waiver terms and/or jeopardise the prospect of a successful claim in respect of any loss of or damage to the equipment.
9.14 Where Direct Palma incurs loss, damage or expense as a result of loss of or damage to the equipment during the hire period, and such loss, damage or expense is not recoverable under the Damage Waiver, the Client shall be liable for and shall indemnify Direct Palma against such loss, damage or expense. Any loss must be reported to the local police within 24 hours.
9.15 Where the Client has agreed to arrange insurance for the equipment, the Client shall keep the equipment insured against loss or damage throughout the hire period for all risks including theft. Such insurance shall be with a reputable insurance company, shall be for the full replacement value (as new) of the equipment, shall be free from restriction or excess and shall be in the joint names of Direct Palma and the Client. The Client shall produce to Direct Palma on demand a copy of a current insurance policy in respect of the equipment in accordance with this clause.(together with a receipt for the last premium paid).
9.16 Where the Client has arranged insurance under clause 11.15, the Client shall be liable for and shall indemnify Direct Palma against any and all losses, damages or expenses incurred by Direct Palma which arise out of or in connection with any loss of or damage to the equipment caused during the hire period (fair wear and tear excepted), including without limitation:

9.16.1 any loss of rental income resulting from such loss or damage, up to maximum of 13 weeks’ hire charges; and
9.16.2 the lesser of (1) the full replacement cost of the equipment and (2) the cost of reinstating the equipment to satisfactory and operational condition.

9.17 Within 24 hours of becoming aware of any occurrence which will or may give rise to a Damage Waiver claim, or a claim under the Client’s insurance, in relation to the equipment, the Client shall give written notice to Direct Palma of such occurrence.
9.18 Direct Palma reserves the right to terminate usage of any equipment if Direct Palma considers that its employees, agents, contractors or equipment would or may be put at risk if such usage were to continue, for example in adverse weather conditions. In these circumstances, hire charges shall remain payable by the Client in full.
Customer’s Obligations
9.19 During the hire period, the Client shall:

9.19.1 keep all hire equipment in its custody and control and shall not sell, loan, assign, pledge, encumber or part with possession of or suffer a lien to be created over the equipment or any part thereof (unless otherwise agreed in writing by Direct Palma);
9.19.2 ensure that all equipment is used in a skilful and proper manner by persons having the appropriate qualifications and experience who are familiar with the equipment; and
9.19.3 take proper care of all equipment and ensure that it is properly stored and protected from interference, deterioration and/or damage from any source.
Replacement and Repairs of Hire Equipment

9.20 The Client shall at all reasonable times allow Direct Palma and its representatives access to hire equipment in order to inspect, test, adjust, repair, alter or replace the same.
9.21 If at any time during the hire period any hire equipment requires adjustment, repair or replacement then:

9.21.1 the Client shall not, and shall not permit any third party to, adjust, repair, alter or replace the equipment but shall forthwith give notice of such requirement to Direct Palma; and
9.21.2 Direct Palma shall either carry out the necessary adjustment or repair at the Client’s premises or, at Direct Palma’s discretion, shall arrange for the removal of the equipment (or the relevant part(s) thereof) to Direct Palma’s premises for such purpose.

9.22 If Direct Palma removes any hire equipment for adjustment or repair, Direct Palma may, at its option:

9.22.1 adjust, repair and redeliver the relevant equipment;
9.22.2 terminate the hire period forthwith in relation to the relevant equipment by giving notice to the Client, in which case Direct Palma shall refund to the Client any part of any hire charges paid by the Client in respect of the relevant equipment that relates to the unexpired part of the hire period; or
9.22.3 replace the relevant equipment, in which case the replacement equipment shall be deemed to have been included in the equipment delivered to or collected by the Client at the start of the hire period.

9.23 If Direct Palma adjusts, repairs or substitutes the equipment pursuant to clause 9.22.1, Direct Palma may at its option vary the hire charges with effect from the date of completion of such adjustments or repairs, or from delivery of such replacement equipment, and may invoice the Client for any additional hire charges payable.
9.24 If any equipment requires adjustment, repair or replacement due to any act or omission of the Client and/or due to any failure of the Client to comply with these Terms of Business, Direct Palma shall be entitled to retain any deposit paid by the Client in respect of the equipment and the Client shall be liable for all costs incurred by Direct Palma in carrying out such adjustment, repair or replacement (including without limitation the costs of inspecting, loading, unloading, transporting and testing such equipment), to the extent not covered by the amount of the deposit.
Cancellation
9.25 If any order for the hire of equipment is cancelled less than 24 hours prior to the intended start of the hire period, but more than four working hours before such time, the Client shall pay Direct Palma 25% of the hire charges for all equipment for the first full day of the hire period.
9.26 If any order for the rental of equipment is cancelled less than four working hours prior to the intended start of the hire period, the Client shall pay Direct Palma 50% of the hire charges for all equipment for the first full day of the hire period.
9.27 If any order for the rental of equipment is cancelled on or after the intended start of the hire period, the Client shall pay Direct Palma 100% of the hire charges for all equipment for the first full day of the hire period, together with any delivery costs incurred by Direct Palma.
9.28 “working hours” for this purpose are: 9am to 6pm. By way of example, if the hire period is due to start at 10am on a Tuesday and the Client cancels its order at 6pm on the Monday evening, that equates to one working zero hours notice of cancellation and the charge specified in clause 9.27 above shall apply.
9.29 Cancellations of confirmed studio bookings will be charged in full.
Termination of Hire Period
9.30 Direct Palma may terminate any hire period immediately on notice to the Client in the event of any material breach of these Terms of Business by the Client (including without limitation any failure to pay any hire charges when due) and/or if the Client uses any equipment or studio facilities in any way which is unlawful and/or would cause damage to the equipment or studio facilities or any part of them and/or would or might bring Direct Palma into disrepute.
9.31 Upon termination or expiry of the hire period, the Client shall:

9.31.1 allow Direct Palma or its authorised representatives and/or contractors, at a time agreed with Direct Palma, to enter onto the premises at which all hire equipment is being used or stored (the “Collection Address”) for the purposes of collecting the equipment. If Direct Palma’s representatives or contractors are unable to gain access to the Collection Address for the purposes of such collection and/or if collection is delayed due to any act or omission of the Client, the Client shall be responsible for any additional costs incurred by Direct Palma as a result and shall pay hire charges until the eventual collection of the equipment; or
9.31.2 immediately at its own expense return all equipment to an address nominated by Direct Palma. If the Client fails to return all equipment in accordance with this clause 9.31.2, Direct Palma shall be entitled to enter the Collection Address for the purpose of removing such equipment and the Client hereby grants Direct Palma an irrevocable licence for Direct Palma’s representatives and/or contractors to enter the Collection Address for such purpose; and
9.31.3 leave the studio facilities (if used) in the same condition in which they were made available to the Client, and shall dismantle and remove all of the Client’s property, equipment, sets, props, lighting set-ups and other materials. In the event that any sets, props and/or lighting set-ups remain in the studio facilities at the end of the hire period, Direct Palma reserves the right to remove and dispose of such sets, props and/or lighting set-ups and to charge the Client for dismantling and/or disposing of the same.

Return of Equipment: Loss / Damage
9.32 The Client shall be responsible for returning all hire equipment at the end of the hire period in the condition in which it was delivered to or collected by the Client (subject to fair wear and tear).
9.33 If any equipment is returned damaged, or if equipment is lost and not returned at the end of the hire period, Direct Palma shall be entitled to retain any deposit paid by the Client in respect of the equipment and the Client shall be charged for the repair or replacement of the relevant equipment (to the extent not covered by the amount of the deposit) and for any loss of rental income incurred by Direct Palma as a result of such damage or loss, up to a maximum of 13 weeks’ hire charges.

10.1 The Client may collect film and other consumables from Direct Palma or have them delivered by Direct Palma for an additional delivery charge.
10.2 Title to all consumables shall pass to the Client upon receipt by Direct Palma of the full price payable for them or, if later, on the date on which the consumables are delivered to or collected by the Client.