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These General Terms and Conditions of Lease (hereinafter referred to as the “GTCL”) govern the leasing of gear (hereinafter referred to as the “Gear”) granted by Panavision Alga Techno and its branches Panavision Marseille, Panavision Lyon, Panavision Bordeaux, Panavision Montpellier, Panavision Brussels and Panavision Wallonie, a French private limited company with a sole shareholder, share capital in amount of EUR 500,000, and registered offices at 45 avenue Victor Hugo, EMGP bâtiment 217, F-93534 Aubervilliers, registered with the French Trade Registry in Bobigny under the no. 542 067 863, (hereinafter referred to as “Panavision”) to any natural or legal person (hereinafter referred to as the “Hirer”). Any contract of lease (hereinafter referred to as the “Contract”) is entered into and formalised either by the signature of a lease agreement (hereinafter referred to as the “Lease Agreement”) in two (2) originals or acceptance by Panavision of an order for the lease of Gear in the terms and conditions set out hereinafter.
The GTCL are available on the Panavision website (www.panavision.fr) and are systematically sent or handed to each Lessee, notably together with the pricing, in order to enable the Lessee to place an order. The act of placing an order entails on the part of the Lessee complete acceptance, without any reservations, of these GTCL, which the Lessee acknowledges he has taken perfect cognisance of, to the exclusion of any other document such as brochures, catalogues and/or invoices issued by Panavision, which documents are not binding. No special term, even one granted by any Panavision employee or agent, may take precedence over these GTCL unless specially agreed to in writing by Panavision’s management. The GTCL also take precedence over all general terms and conditions of purchase or all other document not agreed to in writing beforehand by Panavision. These GTCL may at all times be modified by Panavision without any prior notice and apply to any new Contract.
In the event that a Lease Agreement is signed by Panavision and the Hirer, these GTCL shall be the general terms and conditions thereto and shall be supplemented by special terms and conditions of lease and Appendices. In such an event, Article 2.2 shall not apply.
2.2.1. Handling of orders: All orders for Gear handled by the Hirer must be sent in writing to Panavision by sending a quote (hereinafter referred to as the “Quote”) which must namely indicate: the hire duration, the date on which and place where the Gear will be collected, the date on which it will be returned and the statement among which the Hirer duly accepts the GTCL, a copy of which shall be reproduced on the back of said Quote and on the Panavision website (www.panavision.fr) where is also available a description of Panavision logos – one of those to be featured in the credits of the film according to Article 5 hereto (the description is deemed to be Appendix 1 of the GTCL).
2.2.2. Acceptance of orders by Panavision: Any order handled by Hirer according to the Hire Agreement General Terms and Conditions and to the financial conditions in force shall be deemed to be accepted by Panavision, unless Panavision notifies otherwise by writing within a thirty (30)-day period maximum following the reception of this order by Panavision. Any order accepted by Panavision shall become firm and irrevocable and shall constitute the Contract.
2.2.3. Cancel of orders by the Hirer: If any order is cancelled less than 48 hours before the date on which the Gear is to be collected, a penalty equal to 10% of the hire fee exclusive of tax for the term of the Contract shall be applied.
3.1. Place of availability of the Gear: When an order placed by the Hirer has been accepted by Panavision, the Gear may be collected from Panavision’s premises at the address specified in Article (f) of the Contract.
3.2. Acceptance of the Gear: The Hirer confirms that it has the technical expertise required in order to select the Gear which best suits its requirements (Panavision is under no obligation to provide any advice in this respect). The Hirer shall accept the Gear by signing the Gear handover form which shall particularly indicate a description of the Gear, after the Hirer has inspected the Gear and carried out the necessary tests and trials in Panavision’s premises. If no reservation is expressed in such Gear handover form, the Gear shall be deemed to be in perfect condition of function ability upon handover. If the Gear is not collected on the due date, the Contract shall nevertheless take effect and all the related fees shall be payable as from the Effective Date mentioned in Article (a) of the Contract.
3.3 Safekeeping of the Gear: As from the date of release of the Gear in Panavision’s premises, the Hirer shall be considered as the sole custodian thereof such that it shall be responsible vis-à-vis Panavision for any damage caused to the Gear in its custody. Accordingly, the Hirer shall take all the necessary steps and take out all the necessary insurance in order to indemnify Panavision in the event the Gear in question is lost, stolen or destroyed. Notwithstanding the foregoing, in the event that the Hirer, its employees, contractors or agents test and or prep the Gear at Panavision’s premises, the Hirer shall bear all risk with respect to any damage to the Gear or other liability caused as a result of the actions or omissions of the Hirer, its employees, contractors or agents during such testing or prep. The Hirer is informed that a shock sensor can be fixed on the Gear.
3.4. Use and maintenance of the Gear: The Hirer represents that it has acquired valid experience in the film-making industry and in the use of technical cinematographic gear and that it has the technical resources and staff required to use and maintain the Gear in accordance with its intended use. The Hirer undertakes to use the Gear at its own risk as a cautious professional and to comply with any and all instructions provided by Panavision. The Hirer shall ensure that those who use the Gear have the appropriate qualifications and necessary experience, it being specified that Panavision shall have neither information nor training duties vis-à-vis those who will use the Gear. The Hirer expressly undertakes to refrain from making or allowing any modifications to be made to the Gear without the express permission of Panavision. The Hirer shall carry out day-to-day maintenance and repair operations on the Gear or arrange for such operations to be carried out by experienced service providers at its expense. Panavision reserves the right to inspect that the Gear remains in perfect condition of function ability. The Hirer undertakes to allow Panavision to access the filming location where the Gear is being used or the premises where it is being stored, subject to reasonable notice, providing it does not interfere in the filming process, so as to enable Panavision to check the conditions in which the Gear is being used by the Hirer. The territory (hereinafter designed as the “Territory”) on which the Hirer is authorized to use the Gear is metropolitan France, unless Article (b) of the Contract indicates otherwise.
3.5. Respect for Panavision’s trademarks and rights: The Hirer acknowledges that the Gear is the exclusive property of Panavision except where it is the subject of a finance lease (credit-bail). The Hirer undertakes to refrain from engaging in any act which may infringe on the ownership rights and trademarks of Panavision. The
Hirer undertakes to refrain from altering, modifying or concealing, by any means whatsoever, the plate affixed to the Gear such that the owner thereof is always clearly identifiable. The Hirer shall keep Panavision informed at all times of any legal actions and claims and of any compensation or expenses which arise as a result of the Gear being used pursuant to this Contract.
4.1. When the Agreement ends, for any reason whatsoever, the Hirer undertakes to return the Gear placed at its disposal pursuant to this Contract to Panavision (as well as any demonstration and/or communication gear and/or advertising documents provided by Panavision), in Panavision’s premises indicated in Article (f) of the Contract, on the date and at the time indicated in Article (a) of the Contract (it being specified that the day of return of the Gear shall be invoiced for any Gear returned after 12 am), at its own risk. In the event the Gear (so as any item provided by Panavision according to the Contract) is not returned on due date, the Hirer shall be required to pay twice (2 times) the daily hire fee per day’s delay for each item of Gear not returned.
4.2. The Gear is to be returned in the same condition in which it was collected. If colour of the shock sensor fixed to the Gear has changed and has become red (proving it has received a shock superior to 10G), the Gear will be automatically checked. The cost of this check (200 € without taxes) will be invoiced to the Hirer who commits himself to pay the invoice upon receipt. When the Gear is returned to Panavision’s premises, a contradictory (ie: in the presence of both parties) inventory may be drawn up, at the Hirer’s written request. Failing such a request, the Gear shall be checked within eight (8) days following such return, by Panavision’s technical services which shall then notify the Hirer of any default, damage or missing item which may affect the Gear. Those defaults, damages or missing items shall be deemed to be irrevocably accepted by the Hirer, unless the latter has notified them by writing (registered letter with receipt requested of by fax), within eight (8) days following the delivery of the Gear. If the Gear has been spoiled or damaged or has deteriorated, the Hirer shall indemnify Panavision for the amount of repair work required (upon presentation of a quote) to ensure that the Gear can be used in accordance with its normal intended use. In this case, Panavision may retain the deposit, without prejudice to any damages it may claim, particularly considering the period of repair during which the Gear will be immobilized and the loss of rental during this period. The Hirer shall pay the hire fee for any damaged or destroyed Gear until such Gear is repaired or until the Hirer pays the replacement cost of such Gear (although Panavision acknowledges that if the Hirer is covered by Panavision insurance pursuant to Article 7.2, the Hirer’s liability may be met by the relevant insurer). It is hereby agreed that upon their being returned the camera’s magazines must not hold any film. In case of the contrary Panavision’s staff may not be held liable for any fogging that might arise therefrom.
Provided that the project is photographed principally with Panavision’s cameras and/or lenses, the Hirer shall give Panavision credit on all formats, manner and media in which the project is distributed, exhibited, disseminated or otherwise exploited, including, without limitation, by means of negative film stock and all forms of digital media of the project, according to this Article 5. It is expressly agreed that the Hirer shall not invoice the cost of these advertising services to Panavision, as such cost is included in the hire price set out in Article 6 of the Contract. Panavision’s credit shall not be less favorable in size, height, width and prominence than the credit granted to any other technical credit (including, without limitation, color, laboratory, sound and equipment supplier credits, and excluding only credits accorded to suppliers of visual effects, e.g. industrial light and magic).
5.2.1. On-screen. If the project is produced for on-screen pictures, the Credit shall be inserted:
(i) where the format is anamorphic, as set forth in Appendix 1.1;
(ii) where the format is spherical or super-35, as set forth in Appendix 1.2;
(iii) where shooting is in RED, as set forth in Appendix 1.3;
(iv) where format is in all other standard, as set forth in Appendix 1.4;
(v) where the format is presented in Panavision standard credit typeset, as set forth in Appendix 1.5;
5.2.2. Television only : If the project is produced for initial exhibition on television, and the Hirer does not anticipate a theatrical release, Panavision will accept a one line credit in the end titles of each episode as follows (as applicable):
(i) FILMED WITH Panavision® CAMERAS & LENSES,
(ii) PRODUCTION EQUIPMENT PROVIDED BY Panavision®.
(iii) Filmed in RED, provided by Panavision.
Where the word “Panavision” is presented in our standard credit typeset as set forth in Appendix 1.5. If the project is produced for network television, the Hirer shall be relieved of the obligation to grant Panavision credit if the project does not grant any technical credits.
The Hirer shall use its reasonable commercial efforts to ensure that all third-party distributor(s) of the project comply with Hirer’s credit obligations under this Credit Memorandum and to include such provisions in Hirer’s agreements with such third parties; provided, however, that so long as the Hirer has exerted such reasonable commercial efforts, failure of such third parties to comply with this Credit Memorandum shall not constitute a material breach of this Contract.
The cost of hiring the Gear shall be based on the price in force within Panavision when the latter accepts the order, subject to any reductions stipulated in Article (d) of the Contract. All duties, taxes, levies, transport, packaging and insurance costs relating to the transportation and use of the Gear shall be paid solely by the Hirer as from the date on which the Gear is made available to it until such time as it is returned to Panavision, unless any contrary disposal regulated in article 7.2. Any advance payment made by the Hirer which amount is mentioned in Article (d) of the Contract, shall be retained in any case by Panavision (in the event of prior termination of the Contract as well) and Article 2.2.3 above shall remain in full force. Panavision reserves the right to modify the hire fee and the invoicing conditions, with no prior notice. These new conditions will be applicable to further new Contracts.
The hire of the Gear shall be invoiced to the Hirer per week of use. The Hirer alone shall assume the payment of the hire fees and of all amounts owed to Panavision under this Contract, unless Panavision agrees otherwise. Invoices are to be paid to Panavision on reception of such invoices by the hirer, unless Panavision agrees otherwise. The Hirer shall pay all amounts owed to Panavision in euros at Panavision’s address within the time limit and in the manner set out in Article (d) of the Contract. Panavision has made this commitment on the condition that the Hirer strictly complies with the payment deadlines. In consequence, any amount which is not paid on the due date specified herein shall incur automatically (with no prior notice) late-payment interest, equal to the legal rate plus five (5) points per month’s delay, with compound interest being applicable to such late-payment interest. Moreover, in the event of a non-payment or delayed payment, Panavision shall be entitled to suspend the services provided pursuant to the Contract, in whole or in part, without prejudice to its right to terminate the Contract.
Panavision shall be entitled to require the Hirer to provide a certified cheque when the Hirer handles an order for the first time. An account shall then be open so as the Hirer shall not be required to provide such certified cheque for further handles of orders. A deposit shall be due by the Hirer. In the event of use of the gear outside metropolitan France (Corsica included), Panavision reserves the right to ask for a guarantee from a bank (or the mother company of the Hirer) which may be equal to the value of the Gear (Article (e) of the Contract). The deposit, which shall not bear interest, shall be refundable when the Gear has been returned, subject to the deduction of any amount owed by the Hirer in any respect whatsoever.
7.1.1. Scope of liability: Panavision’s liability shall only be implicated if it is found guilty by a court, solely on account of a fault or design or manufacturing defect in the Gear, providing the Hirer has informed it thereof within 48 hours of its discovery by fax (immediately confirmed by registered letter with advice of receipt). The Gear shall then be returned to Panavision by the Hirer at the Hirer’s costs and risks. In any event, Panavision’s warranty shall be limited to the replacement (or repair, as Panavision sees fit) of the faulty Gear for the remaining term of the Agreement, to the exclusion of any other reimbursement or indemnity.
7.1.2. Warranty exclusion: Panavision’s warranty shall not cover the loss or theft of the Gear, the storage thereof in a car, the risks of damage caused by sea salt, water and sand, exposure to extreme temperatures, dust, mould, electrical overvoltage and undervoltage, or any damage resulting directly or indirectly from inappropriate storage conditions, an act of negligence, or the improper handling, use or application of the Gear by the Hirer or an individual under the Hirer’s responsibility. The Hirer alone shall be responsible for any damage caused to the Gear or to a third party by the said Gear. Panavision shall not be held responsible for any loss or damage of any kind which results in a delay, the delayed release [of the Gear] or of equivalent gear, a stock shortage, a defect or the malfunction of the Gear, or for the repair, maintenance or operation thereof. The Hirer represents that it is fully aware of the numerous consequences which may arise as a result of scratches on the film or of focussing errors and expressly undertakes to refrain from seeking to have Panavision held liable in this respect. Panavision provides no warranty in respect of incidents involving negatives and/or shots and/or the quality of the Gear and/or the results obtained, in particular, in the event of the warping and/or deterioration of films. In addition, if any Gear is returned to Panavision still containing any of the visual or audiovisual content of the project, Panavision shall have no obligation or liability for taking, or failing to take, any action with respect to such content, including without limitation, maintaining or safeguarding such content or its confidentiality or delivering it to Hirer. Accordingly, Hirer expressly agrees to the additional terms set forth in Appendix 2 attached hereto. Panavision shall not be liable for any stoppages and/or production conditions of any kind whatsoever arising as a result of any incident whatsoever or the direct or indirect consequences thereof. The Hirer is responsible for taking out insurance to cover these risks. Panavision (AND ANY MASTER LESSOR OF THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO TECHNOCRANE, S.R.O.) shall under no circumstance be held liable for any consequential damage, damage to property or indirect damage (such as operating losses, harm to a brand image) sustained by the Hirer.
Hirer agrees for the avoidance of doubt that:
To the extent the Gear that Hirer is renting is digital equipment, Hirer acknowledges and agrees that certain digital photography equipment systems, including, without limitation, systems utilizing “spinning disk” or similar technology and the data capture and storage apparatus used in connection therewith (collectively, “systems”), may be prone to technical failures during ordinary use which may affect the integrity or retrievability of Hirer’s recording and related data (together, “data”). Performance of such systems and proper capture of Hirer’s data can be optimized only through timely review of all of such data as is it captured by technicians experienced in the use of such systems but cannot be guaranteed and may not be uninterrupted or error free. Panavision strongly recommends that Hirer engage such experienced technicians to protect its data, provided that Hirer acknowledges that no advice, guidance or information provided to Hirer by Panavision with respect to such systems, any other Gear or otherwise shall create any representation or warranty not expressly made herein or in Panavision’s Lease Agreement.
If any Gear, including such systems, is returned to Panavision still containing any visual or audiovisual content or other data, Hirer expressly acknowledges that in the ordinary course of its business Panavision will clear any and all such content or data from such systems or other Equipment immediately following the end of the rental period for such systems or other Gear in order to maintain and prepare the systems for subsequent rentals. Panavision shall have no obligation or liability for taking, or failing to take, any action with respect to such content or data including without limitation, maintaining or safeguarding such content or its confidentiality or delivering it to you. Accordingly, Hirer agrees to back up all of its data at Hirer’s earliest convenience throughout the filming process and that Hirer is solely responsible for protection and back up of its data.
Since Hirer acknowledges that the loss that it may incur by reason of faulty Gear or a malfunction of Gear, including in each case, the systems, could far exceed the rental price for the Gear and that it is not economically feasible for Panavision to assume responsibility for such loss (e.g., out of focus shots, scratched film, incorrectly exposed negative, damage to or loss of your data), Hirer acknowledges that Panavision shall have no liability or responsibility, whether direct, indirect, consequential or otherwise, for any such loss or damage, including that Panavision shall not be liable or responsible for recreating all or any portion of any picture, original artwork or design.
The Gear shall be covered all other the world by the insurance taken out by Panavision in case of sudden, accidental and unexpected damage and theft during transport or during film shooting, which shall be the subject of an additional invoice (equal, in principle, to 8% of the total gross hire fee exclusive of tax invoiced in respect of the Gear). The Hirer represents that it is fully aware of the conditions under which the Gear has been insured by Panavision as well as of the warranty exclusions pertaining to the Gear and of the losses which are not covered by Panavision’s insurance. The Hirer undertakes to notify Panavision if the Gear is to be used under exceptional circumstances (on a racing circuit, during races, for the purpose of reports, etc.) and to take out, at its expense, one or more insurance policies to supplement the policy or policies taken out by Panavision in order to insure the Gear against the risks not insured by Panavision and particularly in these exceptional circumstances. In general, the Hirer undertakes to take out any additional insurance policy required in respect of the use of the Gear with a reputable, creditworthy insurance company to cover all losses, including those relating to public liability, which may arise in connection with the use of the Gear and any damage caused to the Gear. The Hirer undertakes to promptly inform Panavision of any loss which occurs in relation with the Gear or damage or injury sustained by a third party as a result of the Gear. In In the event of a loss or theft, the Hirer undertakes to file a complaint and to remit the related certificate to Panavision, it being specified that the risk “theft” is insured provided the Gear is in good conditions of surveillance (are namely excluded the thefts with no breaking or with no move of the vehicle during film shooting, thefts with no breaking out of film shooting and thefts with breaking between 9pm and 7 am, out of film shooting if the vehicle is not parked in a closed parking or in a parking with no surveillance). The claims will be settled at replacement value of such Gear, after deduction of a 3.000 Euros-excess per damage to be bear by the Hirer.
The Hirer alone shall be responsible for obtaining the authorisations required to use the Gear throughout the term of the Agreement in France and in all other countries. For example, in order to use cranes, the Hirer is asked to check with the relevant safety organisations that it has oversail consent (autorisation de survol du public).
The Agreement shall take effect on the Effective Date for a duration both mentioned in Article (a) of the Contract, contingent on the fulfilment of the conditions precedent mentioned in Article (a) of the Contract, if any. Upon expiry of the initial term of the Contract, the Contract may remain in effect with the express consent of Panavision, under the conditions agreed upon herein.
Apart from the cases of termination expressly agreed upon herein, the Contract may be terminated with no delay by one of the Parties if the other Party breaches any clause of the Contract (subject to the other clauses of this Article) and if the defaulting Party has failed to remedy the breach within six (6) days of a written notice served on it. However, Panavision may terminate the Contract immediately if the Hirer shall become insolvent or shall cease to conduct its business as a going concern, or shall apply for or consent to otherwise obtain the appointment of a receiver, trustee, administrator, liquidator or similar appointment to the Hirer or assets of the Hirer, or if proceedings are instituted under any applicable insolvency law. The Hirer irrevocably acknowledges that, if the Contract is terminated on account of a fault or shortcoming on its part, it shall not be entitled to any indemnity or damages. However, if the Contract is terminated early on account of a failure by the Hirer to comply with its obligations under the Contract, any outstanding instalments of the hire fee owed up to the expiry of the contractual term shall be payable to Panavision. Upon termination of the Contract, for any reason whatsoever, the Hirer shall promptly return the Gear on the terms and under the conditions of Article 4 of the Contract.
The Agreement shall be governed solely by French law. The commercial courts of Paris shall settle any dispute which arises in connection with the Contract, even in case of plurality of defendants, or urgent/summary proceedings or of a third-party notice.
Throughout the term of the Contract and for a period of ten (10) years thereafter, the Parties undertake to refrain from disclosing, directly or indirectly, any information relating to the business activity of the other Party and the Gear which is deemed to be confidential by both Parties without the prior permission of the other Party.
Panavision is entering into this Contract in consideration of the Parties hereto (intuitu personae) given the technical expertise and reputation of the Hirer as of the Effective Date. The rights conferred on the Hirer pursuant to the Contract are indivisible and personal and shall not be assigned, contributed, sublet or loaned, even free of charge, or transferred to a third party, in whole or in part, unless the Hirer has sought and obtained Panavision’s express written permission in that respect. The Gear shall not be the subject of a pledge or guarantee of any kind whatsoever. Otherwise, Panavision reserves the right to terminate the Contract by operation of law, without prior notice, under the conditions set forth in Article 8.2 above.
If one of the Parties breaches any one of its contractual obligations or fails to perform the Contract within the time limit set, it shall not be held responsible by the other Party for any delay or breach caused directly by an unforeseeable, insurmountable event beyond the control of the affected Party or by one of the following events: an unsubstantiated decision by an administrative authority concerning a shortcoming or fault on the part of the said Party, a strike, an act of war, an act of terrorism, a natural disaster, a storm or break in supply. It is hereby agreed that a fire or flood shall not constitute force majeure events; if necessary, the Hirer shall take out additional insurance against these foreseeable risks.
The unaffected Party may suspend the performance of or compliance with its own obligations for the duration of the force majeure event providing such suspension is considered reasonable. The Party affected by the force majeure event shall take all reasonable measures to comply with the Contract. If the force majeure event deprives the other Party of any of the benefits or rights provided for under the Contract for more than thirty (30) consecutive days, the Party that is deprived of such right may terminate the Contract by operation of law subject to ten (10) days’ notice, without any indemnity being owed by either Party, simply on account of the fact that the Contract has been terminated due to a force majeure event.
If any clause of the Contract is held to be invalid or inapplicable by any court or administrative authority, the Parties agree to negotiate in good faith in order to amend the said clause such that the Contract is rendered valid and enforceable in accordance with the Parties’ original intention. In this case, the other provisions of the Contract shall not be affected or amended by any means.
Any addition to, or precision or amendment of, the Contract must be set out in a supplemental agreement drawn up in writing and dated and signed by an individual duly empowered to represent each Party. Any waiver, whether express or implied, by either Party, to rely on a breach of the provisions of the Contract, in whole or in part, on a temporary basis or not, shall not be construed as a waiver of the right to rely on any breach or failure to perform the said provision or any other provision of the Contract at any subsequent time or as a supplemental agreement hereto.
Any notice or other communication to be made under the Contract shall only be valid if drawn up in writing and (i) delivered to the recipient in return for a receipt or (ii) sent by registered letter with advice of receipt requested to the address mentioned on the first page of the Contract. Any notice hereunder shall be deemed to have been validly served by the sender on the date specified on the signed receipt or on the delivery advice slip and validly received by the recipient on the date specified on the signed receipt or on the notice of the first presentation thereof by the postal services.
Entry into force: 2nd August 2016
ALL OTHER STANDARD
STANDARD CREDIT TYPESET
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