TERMS AND CONDITIONS
1. SCOPE OF TERMS AND CONDITIONS
“Products” as used herein shall mean the cameras, lighting equipment, grip equipment, vehicles, and/or other supplies or equipment listed on the face page. Paskal Lighting’s acceptance of any order is expressly conditional on Customer’s assent to all of the terms and conditions herein to the exclusion of any additional or different terms or conditions stated on Customer’s order form, which assent shall be conclusively presumed from (i) Customer’s failure to seasonably object in writing to such additional or different terms, or (ii) Customer’s acceptance of any or all of the Products offered. Products delivered prior to such assent are provided as an accommodation only. It is further agreed that these terms and conditions shall be in effect in all of Customer’s subsequent orders from Paskal Lighting, whether signed for or not.
2. LEASE GRANT AND TERM
The parties expressly agree that with respect to all rented Products, no sale or security interest is intended by this agreement, and that at all times the ownership of the Products remains with Paskal Lighting. The rental term shall commence upon the removal of the Products being in the sole care, custody and control of Customer from Paskal Lighting’s facility for delivery to Customer, and continue until such time as the Products are required to or recovered by Paskal Lighting, whichever is later. The minimum rental period is (1) day. Equipment must be returned by 10:00 a.m. to avoid any extra day charges. No allowance will be made for the time during which Products remained in Customer’s possession but were not in use.
3. PRICES
All prices are set forth on the face hereof. If no price is stated, the price is that specified in the Paskal Lighting Catalog current at the time of order acceptance. Unless otherwise specified, prices for Products do not include applicable shipping, customs brokerage, insurance, duties, excise, sales, use or other taxes or similar charges, which shall be billed to and paid by Customer on a per order basis.
4. TERMS OF PAYMENT
Payment terms are net ten (10) business days from invoice date or as otherwise agreed to in writing by Paskal Lighting. All orders are subject to credit approval. Payments due by Customer to Paskal Lighting under invoices not in dispute shall be paid by Customer regardless of disputes relating to other invoices, and Customer waives the right to assert offsets or counterclaims with respect to such disputed invoices. If Customer delays acceptance of a Product, the outstanding balance of the order shall become immediately due and payable. Any amounts invoiced and not paid when due shall bear interest at the lower of one and one half (1-1/2%) percent per month or the maximum rate allowed by law.
5. DELIVERY
All Products shall be delivered (and, where rented, returned) by Customer at Customer’s own risk, cost and expense; provided, however, that for all rentals Paskal Lighting will provide one (1) pick up and delivery per day in the greater Los Angeles area at no charge. All shipments of rented Products outside Los Angeles by air or surface requested by Customer will be shipped collect for freight charges, and must be returned to Paskal Lighting with shipment prepaid by Customer. Shipment dates are subject to confirmation by Paskal Lighting based upon its best judgment, and are not guaranteed. Where applicable, Paskal Lighting, unless otherwise instructed in writing, will select the carrier on behalf of Customer, but will not thereby assume any liability in connection with the shipment, except with respect to Paskal Lighting’s own negligence or willful misconduct, nor will the carrier by construed as Paskal Lighting’s agent.
6. CANCELLATIONS AND RETURNS
An order (or any portion thereof) may only be canceled by providing written notice to Paskal Lighting at least twenty-four (24) hours prior to the delivery date for the Product(s). In the event of such cancellation, all approved and undisputed amounts then owed for Products accepted prior to the effective date of the cancellation will be immediately due and payable. The Customer shall be extended a period of thirty (30) days from the date of delivery to return purchased Products for credit only where the Product is: (a) an over-shipment; (b) damaged, defective, or does not conform to specifications and a replacement is not desired; or (c) incorrectly received on an order that had been properly canceled pursuant to this Section. For all cancellations and returns, Paskal Lighting may charge Customer a restocking charge of 20% of the order amount which is payable upon Customer’s receipt of an invoice therefore. No returns of expendable items will be accepted unless the Products are full case lots in the original, unbroken and sealed packaging.
7. USE OF LEASED PRODUCTS
(a) At all times during the rental Customer shall, at it’s own expense, maintain the Products in as good state of condition and repair as when received, reasonable wear and tear excepted. Customer agrees that it will not alter the Products in any way, including without limitation removing the tag or nameplate on the Products showing ownership by Paskal Lighting. Paskal Lighting and its agents shall have the right at all reasonable times to enter upon the premises with reasonable prior notification where the Products are kept for the purpose of viewing the state and condition of said Products.
(b) Customer agrees to use rented Products solely for the purposes for which they were supplied. Customer represents and warrants that the Products will only be operated by competent personnel familiar with the Products’ operation, and that customer is over 21 years of age.
(c) Customer agrees not to change the physical location of the Products without first notifying Paskal Lighting and receiving Paskal Lighting’s prior written approval. Customer agrees not to transport any rented Products from the ground in an airplane or any machine used for air travel either lighter or heavier than air without the prior written consent of Paskal Lighting.
(d) Customer may not sublease or loan the Products to any third party without the prior written consent of Paskal Lighting, and the Products shall at all time remain under the control, supervision and direction of the Customer personally.
8. LIENS
Customer shall maintain the Products free and clear of all liens, claims, levies, and other encumbrances, and Customer shall not allow any execution, attachment, or other legal process to be levied against the Products.
9. RISK OF LOSS OR DAMAGE
(a) Title to and risk of loss of all Products purchased pass to Customer upon their delivery to the carrier at the point of shipmentCustomer.
(b) Except to the extent due to the negligence or willful misconduct of the Indemnitees, Customer shall bear the entire risk of loss or damage of rented Products, however caused, during the period commencing when the Products are in Customer’s sole care, custody and control leave Paskal Lighting’s facility and ending when the Products are returned to Paskal Lighting. Customer may inspect and test all Products rented at Paskal Lighting’s facility prior to the commencement of the rental item.
(c) If the rented Products or any part thereof is damaged, broken, or destroyed by Customer during the term of the rental agreement, Customer agrees to notify Paskal Lighting in writing within one (1) business day following the loss or damage, and shall repair and restore the Products to the condition it was in immediately before the time of damage. If the Products are not repairable or are lost or stolen, Customer agrees to pay the full retail replacement value of the Products to Paskal Lighting. Customer further agrees to pay Paskal Lighting for all loss of use incurred, including but not limited to continuing rental payments, until such time as the Products are repaired or Paskal Lighting receives the full replacement value payment.
10. INSURANCE
(a) For all rented Products, Customer shall at all times, during the lease term, at it’s own expense, insure the Products (including without limitation any vehicles) against any loss or damage whatsoever, and carry and maintain or cause to be carried and maintained: (i) all-risks property insurance for the Products in amounts sufficient to cover the replacement cost of the Products; (ii) comprehensive commercial general liability insurance; and, where applicable, (iii) automobile insurance, which shall insure against any and all losses incurred in connection with the use of, or any damage or destruction to, the Products (including incidental and consequential losses) for which such insurance is available, in amounts of coverage reasonably satisfactory to Paskal Lighting. The insurance required under this section must be maintained with an insurance company reasonably acceptable by Paskal Lighting, and must name as additional insureds Paskal Lighting, its affiliated corporations, successors and assigns. All such insurance required under this section shall be primary with respect to Paskal Lighting. Any other insurance available to Paskal Lighting shall be excess and non-contributory with insurance required herein.
(b) Upon request of Paskal Lighting, Customer shall deliver to Paskal Lighting a Certificate of Insurance evidencing the above coverage. The insurance shall not be modified or canceled except upon thirty (30) days’ prior written notice to Paskal Lighting. Should any of the above-described policies be canceled before the expiration date thereof, notice will be delivered in accordance with the policy provisions.
(c) Customer expressly agrees that the lapse of insurance or cancellation of the required insurance policies shall be considered an immediate and automatic default of this Agreement by Customer and cause for the immediate removal of the Products from Customer’s site. It is further understood that delivery may be delayed until the requirements of insurance is satisfied, however, billing will start as scheduled.
11. INDEMNIFICATION
Except to the extent due to the negligence or willful misconduct of the Indemnitees, Customer shall indemnify and hold harmless Paskal Lighting and its affiliates, subsidiaries, agents, employees, officers and directors (“Indemnitees”) from, and at Customer’s sole expense, defend Paskal Lighting and its affiliates, subsidiaries, agents, employees, officers and directors against, all liabilities, obligations, losses, costs, damages, claims, penalties or expenses (including without limitation reasonable outside attorney’s fees) of whatsoever kind of nature which relate to or arise out of this Agreement or the sale, rental, use, possession, operation, design, condition or return of the Products by Customer, including without limitation liability for injuries to person or property arising out of or relating to filmed sequences, whether based on negligence, strict liability or breach of warranty by Customer. Any amounts that become due from Customer under this Section shall be credited with any amounts received by Paskal Lighting from insurance provided by Customer, and shall be payable by Customer within sixty (60) days following demand thereof by Paskal Lighting. Customer’s duty of indemnification under this Section shall survive the termination or expiration of this Agreement.
12. WARRANTIES AND LIMITATION OF LIABILITY
(a) ALL PRODUCTS ARE SOLD OR LEASED AS IS AND WHERE IS, PASKAL LIGHTING HAS NOT MADE, AND SPECIFICALLY DISCLAIMS; (i) ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE PRODUCTS, REGARDING TITLE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY, FREEDOM FROM CLAIMS OF INFRINGEMENT OR THE LIKE, FITNESS FOR USE FOR A PARTICULAR PURPOSE, QUALITY OF MATERIALS, OR WORKMANSHIP, OR ABSENCE OF DISCOVERABLE OR NONDISCOVERABLE DEFECTS; AND (ii) ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE PRODUCTS (INCLUDING ANY IMPLIED WARRANTY ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE) CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS EXPECTATION OF OR RELIANCE ON ANY SUCH EXPRESS OR IMPLIED WARRANTY OR WARRANTIES.
(b) PASKAL LIGHTING SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, WHETHER ARISING OUT OF CONTRACT OR TORT, OUT OF ANY NEGLIGENCE OR STRICT LIABILITY OF PASKAL LIGHTING OR OTHERWISE, FOR; (i) ANY LIABILITY, LOSS OR DAMAGE CAUSED BY OR ALLEGED BE CAUSED DIRECTLY OR INDIRECTLY BY THE PRODUCTS: BY ANY INADEQUACY, DEFICIENCY, OR DEFECT OF THE PRODUCTS; OR BY ANY OTHER CIRCUMSTANCES IN CONNECTION WITH THIS AGREEMENT; (ii) THE USE, OPERATION, DELIVERY, MAINTENANCE, REPAIR, IMPROVEMENT, OR REPLACEMENT OR PERFORMANCE OF THE PRODUCTS OR ANY RISKS RELATING TO IT; OR (iii) ANY CONSEQUENTIAL DAMAGES, INCLUDING THOSE FOR INTERRUPTION OF SERVICE, LOSS OF BUSINESS, OR ANTICIPATED PROFITS.
(c) IT IS EXPRESSLY AGREED THAT PASKAL LIGHTING’S SOLE OBLIGATION AND LIABILITY TO CUSTOMER IN THE EVENT OF ANY MALFUNCTION OR FAILURE OF THE RENTED PRODUCTS TO OPERATE SHALL BE TO REPAIR THE PRODUCTS AND/OR PROVIDE CUSTOMER WITH THE SAME OR SIMILAR PRODUCTS IN ORDER THAT CUSTOMER MAY ACCOMPLISH THE SAME OR SIMILAR WORK.
13. DEFAULT
If at any time Customer’s financial condition so warrants or if Customer fails to make payment(s) when due, or defaults in any material way, Paskal Lighting may either alter the terms of payment, suspend credit and delay shipment or pursue any remedies available at law or hereunder. In the event of any such default Paskal Lighting, acting reasonably, shall have the option to retake immediate possession of the Products and, for such purpose, Paskal Lighting, its agents or employees may enter upon any premises where the Products may be and may remove the same with or without notice and with or without force without liability to Customer. Upon Paskal Lighting’s retaking possession of its Products under this section, this agreement shall terminate without prejudice to any right or claim for rental payments then due, or the loss of rental payments for the balance of the unexpired rental term, or for any other claim or remedy Paskal Lighting may have against Customer.