These terms and conditions are referred to in this document as the “Terms of Business”.
These Terms of Business apply to all hires of equipment from CineArk Ireland Ltd. By hiring or using any equipment, you agree to be bound by these Terms of Business. If you do not agree to be bound by these Terms of Business, you should not hire or use any equipment owned by CineArk Ireland Ltd.
“Company” means CineArk Ireland Ltd, a company registered in Ireland, with its registered address at Unit 3, Kinsealy Business Park, Kinsealy Lane, Dublin, Ireland whose company registration number is: 704723 and includes its successors and assigns.
“Equipment” means any equipment owned by the Company or sub-hired by the Company for hire to the Customer in accordance with these Terms of Business, including, without limitation, film equipment and all cases and packing materials supplied with it.
“Customer” means any person, firm, corporation or organisation hiring Equipment from the Company, as identified in the Quotation.
“Premises” means any building, vehicle or other premises owned, occupied or controlled by the Company or by its directors, employees, servants or agents.
“Charge(s)” means the charges payable by the Customer to the Company for the hire of the Equipment, as set out in the Quotation.
“Quotation” means the quotation issued by the Company to the Customer setting out the Equipment to be hired and the Charges.
“Business Day” means any day other than a Saturday, Sunday or public holiday in Ireland on which banks in Dublin are open for general business.
“VAT” means value added tax chargeable under applicable law from time to time.
“Force Majeure Event” has the meaning given to it in clause 18.
“Personal Data” and “process” (and their derivatives) have the meanings given to them in the Data Protection Laws.
“Data Protection Laws” means the General Data Protection Regulation (Regulation (EU) 2016/679), the Irish Data Protection Act 2018, and any other applicable data protection laws and regulations in force from time to time.
The agreed hire period is set out in the Quotation. The Equipment remains the property of the Company throughout the hire period, including during transport to and from the Company’s Premises. The Customer shall have no right, title or interest in the Equipment except for the right to possess and use it in accordance with these Terms of Business. The Customer shall not have any lien over the Equipment without the Company’s prior written consent.
All Charges accrue from the time the Equipment leaves the Company’s Premises, or from such other date as is set out in the Quotation, and continue when the Equipment is returned or at the end of the agreed hire period (whichever is the later) or when terminated under clause 4.2(a), provided that the Equipment has been returned to the Company in the same condition it was in at the commencement of the hire (fair wear and tear excepted). In the event that the Equipment is lost, stolen, damaged or destroyed, the Charges shall continue to accrue until such time as either the Equipment is recovered and returned to the Company in the same condition it was in at the commencement of the hire, or replaced, or if damaged, the Equipment is repaired by the Customer at its sole expense and returned in full working order to the Company, provided that where Equipment remains unrecovered (or is declared a total loss by the Customer’s insurer) for a continuous period of 30 days, the Customer shall pay to the Company the current replacement cost of the Equipment whereupon Charges in respect of that Equipment shall cease to accrue.
VAT and other applicable taxes or duties are dealt with in clause 19.
4.1 The Customer shall pay each invoice in full within 30 days of the date of the invoice, without any set-off, counterclaim, deduction or withholding, except as required by law.
The Company may require the Customer to pay a deposit or to pay all or any part of the Charges in advance, including in respect of first hires, hires to Customers without an established credit history with the Company, or hires of high-value Equipment.
4.2 If the Customer fails to make any payment by the due date, then, without prejudice to any other right or remedy, the Company shall be entitled to:
a) terminate these Terms of Business and/or any hire of Equipment with the Customer with immediate effect; or
b) charge interest on the overdue amount at the rate prescribed by the European Communities (Late Payment in Commercial Transactions) Regulations 2012 (S.I. No. 580 of 2012), as amended from time to time; or
c) claim compensation for debt recovery costs in accordance with the European Communities (Late Payment in Commercial Transactions) Regulations 2012 (S.I. No. 580 of 2012), as amended from time to time.
4.3 The Company shall calculate all invoices in accordance with its usual practice. The Company shall maintain accounts evidencing the amounts owed to it by the Customer, and entries in those accounts shall be prima facie evidence of the existence and amount of the Customer’s obligation to pay the Charges.
5.1 The Customer shall be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse or mishandling by the Customer or its officers, employees, agents or contractors.
5.2 All risk of loss, theft, destruction of or damage to the Equipment shall pass to the Customer from the time the Equipment leaves the Company’s Premises or the care of its agent and shall remain with the Customer until the Equipment is returned to, and accepted by, the Company or its authorised agent. The Customer shall take good and proper care of the Equipment and ensure its use in a proper manner by persons with the knowledge and experience to operate it. Any advice or recommendation given by the Company, its employees or agents as to the use, set-up or application of the Equipment is followed or acted upon entirely at the Customer’s own risk.
5.3 Subject to clause 11.3, the Company’s total aggregate liability to the Customer arising out of or in connection with these Terms of Business, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total Charges paid by the Customer under the relevant hire.
5.4 Subject to clause 11.3, the Company shall not be liable to the Customer for any loss of profits, loss of business or business opportunity, loss of revenue or anticipated savings, loss or corruption of data, loss of production time, reshoot costs, interruption to filming, broadcast or production, or any indirect, special or consequential loss, in each case arising out of or in connection with these Terms of Business, even if the Company has been advised of the possibility of such loss.
Any delivery date for the Equipment is approximate only, and the Company shall not be liable for any delay in delivery or provision howsoever caused. It is the Customer’s responsibility to check that the Equipment is in good working order on receipt and matches the contents list or lists provided. The Customer must notify the Company in writing of any missing items or defects capable of being ascertained on inspection as soon as practicable, and in any event before the Equipment is first used or on the first day of principal photography (or equivalent first day of intended use), whichever occurs earlier. If the Customer does not notify the Company accordingly, it shall be conclusively presumed that the Equipment is complete and, so far as it is able to be ascertained on inspection, in good working order.
In addition to the Charges, the Customer shall arrange its own “all risks” insurance in the joint names of the Company and the Customer in respect of the Equipment for its full replacement value together with any associated loss of rental income. The Customer shall, on the Company’s request and in any event before any Equipment leaves the Company’s Premises, provide the Company with a certificate of insurance or other satisfactory evidence of the cover required by this clause 7. It is an express term of these Terms of Business that if for any reason whatsoever the insurers of the Equipment refuse to settle any claim made in respect of the Equipment under such insurance policy the Customer shall be liable to pay forthwith to the Company the balance of such claim and until such sum is paid in full the Customer shall pay interest from 7 days after the date of the Company’s demand thereon at the rate prescribed under clause 4.2(b).
8.1 During the hire period, the Customer shall:
a) ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed;
b) make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Company. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Company immediately upon installation;
c) keep the Company fully informed of all material matters relating to the Equipment;
d) at all times keep the Equipment under the control of the Customer or its authorised crew, contractors, freelancers and production personnel engaged on the relevant production;
e) not, without the prior written consent of the Company, sub-hire, 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;
f) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Company in the Equipment;
g) not use the Equipment for any unlawful purpose;
h) deliver up the Equipment at the end of the hire period or on the termination of these Terms of Business at such address as the Company requires; and
i) not do or permit anything to be done that could invalidate the insurances referred to in clause 7;
j) not export the Equipment from the territory specified in the Quotation without the prior written consent of the Company; and
k) comply with all applicable laws and regulations (including, where relevant, Data Protection Laws, export control laws, and health and safety laws) in connection with the possession and use of the Equipment.
8A. Unauthorised Repairs – The Customer shall not repair, attempt to repair, alter or arrange for the repair of any Equipment without the Company’s prior written consent, except to the extent that immediate action is reasonably necessary to prevent imminent damage to the Equipment or to persons or property. The Customer shall notify the Company as soon as practicable of any such action.
8B. Serial Numbers and Identification Marks – The Customer shall not remove, obscure, deface, alter or tamper with any serial number, asset label, sticker, plate or other identification mark on the Equipment, and shall keep all such identification marks legible and intact throughout the hire period.
8C. Inspection on Return – The Company may inspect the Equipment on or at any time after its return. Any signature, collection note or receipt given on return shall acknowledge only receipt of the Equipment and shall not constitute confirmation that the Equipment has been returned complete, undamaged or in proper working order. The Company may identify loss, damage, contamination, missing items or other defects after return, and the Customer shall remain liable accordingly.
8D. Cancellation and Shortened Hire – If the Customer cancels a booking, fails to collect reserved Equipment, or returns Equipment before the end of the agreed hire period, the Company may charge the Customer for all losses, costs and expenses reasonably incurred as a result, including loss of hire, reserved allocation time, third-party cancellation charges and any transport or preparation costs already incurred by the Company.
The Customer shall compensate the Company for any damage to, loss of, missing items from, or deterioration of the Equipment caused by the Customer’s negligence, misuse or mishandling, and for any failure or delay in returning the Equipment. The amount payable shall include the reasonable cost of repair or replacement and any resulting loss of hire.
10.1 Each party undertakes that it shall not, at any time during these Terms of Business and for a period of 5 years after their termination, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.
10.2 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 carrying out the party’s obligations under these Terms of Business. 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 10; and
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under these Terms of Business.
10.4 The obligations in this clause 10 shall not apply to information which: (a) is or becomes generally available to the public other than through breach of these Terms of Business; (b) was known to the receiving party on a non-confidential basis before disclosure; (c) is received from a third party who is not under any obligation of confidentiality in respect of it; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s confidential information.
11.1 Subject to clause 11.3, the Company makes no warranty or representation to the Customer concerning the Equipment, its condition or fitness for any particular purpose, other than that, at the time it leaves the Company’s Premises or other designated collection point, it will materially perform the function for which it was designed. The Company will not be responsible for the failure of any non-rechargeable batteries supplied by the Company. Neither does the Company make any warranty concerning the abilities of any technicians or other personnel supplied by or through the Company, and the Customer shall be responsible for all such actions of such technicians and personnel whilst working for the Customer.
11.2 The Company’s liability for mechanical and/or electronic breakdown of the Equipment due to natural causes shall be limited to replacing or repairing the Equipment, provided that the defective Equipment or part is returned to the Company at the place from which it was hired, with the costs of carriage, insurance and handling paid by the Customer. Alternatively, the Company may, at its discretion, pay the reasonable cost of the repair or the hire cost of a replacement of the Equipment by a dealer approved by the Company. Any complaints or problems regarding the failure of Equipment must be notified in writing as soon as discovered by the Customer.
11.3 Nothing in these Terms of Business shall exclude or limit any liability which cannot lawfully be excluded or limited, including liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability that cannot lawfully be excluded or limited under applicable law.
The Customer shall indemnify and keep indemnified the Company and its directors, employees, servants and agents against all losses, liabilities, damages, claims, costs and expenses arising out of or in connection with: (a) any loss of or damage to the Equipment while it is at the Customer’s risk; (b) any negligent or unlawful use, misuse or mishandling of the Equipment by the Customer or any person for whom the Customer is responsible; and (c) any breach by the Customer of these Terms of Business.
All hires of Equipment by the Customer from the Company shall be subject to these Terms of Business to the exclusion of any other terms that the Customer seeks to impose or incorporate. If there is any inconsistency between these Terms of Business and any terms of the Customer, these Terms of Business shall prevail.
If any provision or part-provision of these Terms of Business 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 these Terms of Business.
The Company may amend these Terms of Business from time to time. Any modification will be notified to the Customer and will apply to any new hires of Equipment for which a Quotation is issued on or after the date the modification takes effect. Existing hires shall continue to be governed by the Terms of Business in force at the date of the relevant Quotation.
16.1 Either party shall be entitled to immediately terminate these Terms of Business on giving written notice to the other if:
a) That other party commits any material breach of these Terms of Business and, in the case of such a breach which is capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied (for the avoidance of doubt any late payment or failure to pay by the Customer any sums due shall be a material breach); or
b) that other party makes any arrangement with its creditors, is unable to pay its debts as they fall due, becomes bankrupt, enters liquidation (other than for the purpose of a solvent amalgamation or reconstruction), examinership, receivership or any analogous insolvency process; or
c) a receiver, examiner, liquidator or similar officer is appointed over any of the assets of that other party; or
d) That other party ceases, or threatens to cease, to carry on business.
16.2 On termination the Customer shall pay to the Company all Charges, costs and expenses due under these Terms of Business.
16.3 Neither party shall have any right to claim for any loss or damage occasioned by such termination, which shall be without prejudice to any accrued rights and remedies of either party.
16.4 At the expiry of the hire period, or on termination of these Terms of Business for any reason, the Customer shall immediately return the Equipment to the Company’s Premises, or make it available for collection if so agreed, in good working order and condition.
16.5 If the Customer fails to return the Equipment on the due date, the Company may, on giving reasonable notice to the Customer (or, where in the Company’s reasonable opinion it is not practicable to give such notice, without notice), re-take possession of the Equipment. For that purpose, the Company shall be entitled to enter any premises occupied or controlled by the Customer where the Company reasonably believes the Equipment to be located, and the Customer shall procure reasonable access to such premises.
17.1 These Terms of Business and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the laws of Ireland.
17.2 The parties irrevocably agree that the courts of Ireland shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms of Business or their subject matter or formation, provided that the Company may bring proceedings in any court of competent jurisdiction for the purposes of recovering the Equipment, enforcing its rights in the Equipment, or recovering any sums due from the Customer.
18.1 Neither party shall be in breach of these Terms of Business or otherwise liable for any failure or delay in the performance of its obligations to the extent that such failure or delay results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly.
18.2 If the Force Majeure Event prevents, hinders or delays a party’s performance of its obligations for a continuous period of more than 30 days, the party not affected may terminate these Terms of Business by giving 14 days’ written notice to the affected party.
18.3 “Force Majeure Event” means any event or circumstance beyond the reasonable control of the affected party, including (without limitation) acts of God, war, terrorism, civil unrest, pandemic or epidemic, government action or restriction, fire, flood, severe weather, embargo, industrial action or strike (other than involving the affected party’s own workforce), and material failure of utilities or telecommunications networks.
19.1 All Charges are exclusive of VAT and any other applicable taxes or duties, all of which shall be payable by the Customer in addition at the prevailing rate.
19.2 Where the Customer is established outside Ireland and the place of supply rules of the applicable VAT legislation so require, VAT may be subject to the reverse charge mechanism, in which case the Customer shall be responsible for accounting for VAT in its own jurisdiction. The Customer shall, on request, provide the Company with its VAT registration number and any other information reasonably required by the Company to determine the correct VAT treatment of any supply.
19.3 The Customer shall pay all sums due under these Terms of Business in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). If any deduction or withholding is required by law, the Customer shall pay such additional amount as is necessary to ensure that the Company receives the same total amount it would have received had no such deduction or withholding been made.
20.1 The Company may sub-hire Equipment from third parties in order to fulfil any hire to the Customer. Where it does so, the Customer acknowledges that such Equipment may be subject to the terms of the relevant third party’s hire agreement, and the Customer shall comply with any such terms of which the Company gives the Customer reasonable notice.
20.2 The Customer shall not sub-hire, lend, sublet or otherwise part with possession of the Equipment to any third party without the prior written consent of the Company. Any consent given shall be on terms that the Customer remains primarily liable to the Company for the performance of all obligations under these Terms of Business.
21.1 Each party shall comply with its respective obligations under the Data Protection Laws in respect of any Personal Data processed in connection with these Terms of Business.
21.2 To the extent that the Company processes Personal Data on behalf of the Customer in the provision of any services in connection with the Equipment, the parties shall enter into a separate data processing agreement on the Company’s standard terms before any such processing commences.
21.3 The Company’s privacy notice, which describes how the Company processes Personal Data of the Customer’s personnel for its own business purposes, is available on the Company’s website.
22.1 Where the Equipment includes any data storage media (including, without limitation, hard drives, solid state drives, memory cards or recording media), the Customer is solely responsible for any data placed on such media during the hire period. The Customer shall, before returning the Equipment, securely delete or otherwise remove all such data.
22.2 The Company shall be entitled (but not obliged) to wipe, reformat or otherwise erase any data storage media on return. The Company shall have no liability for any loss of, or inability to recover, any data resulting from such wiping or reformatting, or from the Customer’s failure to remove its data from the Equipment before return.
23.1 Any notice given under these Terms of Business shall be in writing and shall be delivered by hand, sent by pre-paid post or other next Business Day delivery service, or sent by email to the address or email address most recently notified by the relevant party for the receipt of notices (or, in the absence of such notification, to the address or email address shown on the most recent Quotation or invoice).
23.2 A notice shall be deemed received: (a) if delivered by hand, at the time it is left at the relevant address; (b) if sent by post, at 9.00 a.m. on the second Business Day after posting; and (c) if sent by email, at the time of transmission, provided that no bounce-back or error message is received within one Business Day.
24.1 The Customer shall not assign, transfer, charge, sub-contract, declare a trust over or otherwise deal with any of its rights or obligations under these Terms of Business without the prior written consent of the Company.
24.2 The Company may assign, transfer, charge, sub-contract or otherwise deal with any of its rights or obligations under these Terms of Business without the consent of the Customer.
25.1 These Terms of Business, together with the Quotation, constitute the entire agreement between the parties in relation to the hire of the Equipment and supersede all prior agreements, understandings and representations (whether written or oral) relating to its subject matter.
25.2 Each party acknowledges that, in entering into these Terms of Business, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) other than those expressly set out in these Terms of Business. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
26.1 Each party shall comply with all applicable laws relating to anti-bribery and anti-corruption, including, without limitation, the Criminal Justice (Corruption Offences) Act 2018 and any other applicable legislation in force from time to time.
26.2 The Company is committed to acting ethically and with integrity in all its business dealings and to taking reasonable steps to prevent modern slavery and human trafficking in its business and supply chains.
A person who is not a party to these Terms of Business shall not have any right to enforce any of their terms.
