“Conditions” refers to these terms and conditions.
“Client” refers to the company, individual, sole trader, association, unincorporated body, or partnership specified in the Order, or as otherwise agreed in writing between the authorised representatives of EMS Communications and the Client.
“Confirmation” means an acknowledgement issued by EMS Communications regarding the Order, which may include fax, email, or verbal communication.
“Content” refers to audio or visual information contained in the Source Material.
“Digital Delivery” encompasses all methods for delivering Source Material and New Material to and from the Client, excluding physical delivery.
“Equipment” refers to the equipment provided by EMS Communications (if any) as specified in the Order, including accessories and packaging.
“New Material(s)” refers to any material created by or for EMS Communications in accordance with the Order or other written agreements, including material derived from duplication or manipulation of the Content.
“Order” means a request from the Client to EMS Communications for the supply of Equipment, New Materials, Personnel, and/or Services, whether made in writing (including fax and email) or verbally
“Personnel” refers to the personnel (if any) provided by EMS Communications to deliver the Services.
“Proposal” means any written proposal issued by EMS Communications to the Client, detailing the Services, New Materials, and/or Equipment to be provided, along with associated charges, fees, or costs.
“Services” refers to the services provided by EMS Communications (if any) as per the Order or Proposal or as otherwise agreed.
“Source Material” refers to the instrument containing the original Content delivered to EMS Communications by or on behalf of the Client.
“Term” refers to the duration of the hire of Equipment, supply of Services, or supply of Personnel to the Client. For rented Equipment, the Term begins upon collection or delivery to the Client and ends upon its return to EMS Communications. For Personnel, it commences on the first day of supply and ends upon their return to EMS Communications premises.
Application
These Conditions shall govern every contract made by EMS Communications with the Client. They shall supersede any terms in documentation submitted by the Client or implied by trade or custom unless explicitly varied in writing by a board director of EMS Communications.
Any agreement made post-contract without reference to these Conditions will still be subject to them.
Agreements between the Client and EMS Communications that do not conform to these Conditions are not binding unless accepted in writing by a board director of EMS Communications.
Orders & Cancellation
Each Order placed by the Client is deemed an offer to EMS Communications subject to these Conditions. An Order is only accepted upon Confirmation by EMS Communications or delivery of Equipment, New Materials, Personnel, or Services. The Client is responsible for ensuring the accuracy and completeness of its Order.
If prices are estimated, EMS Communications will strive for accuracy and inform the Client of the actual prices promptly. Approval of any Proposal with estimated prices implies the Client’s agreement to pay the actual prices at the time of delivery.
Should EMS Communications accept an Order cancellation, a cancellation fee will apply, which will be the greater of EMS Communications' expenses or a percentage of the total Order value based on the notice period given:
Over 30 days: 10%
11-30 days: 25%
8-10 days: 50%
1-7 days: 100%
Additional cancellation terms for interpreters are:
Over 30 days: 25%
15-30 days: 50%
1-14 days: 100%
If the Client requests changes to the Order, EMS Communications will inform the Client of any effects on delivery times and costs, which the Client will be responsible for.
Delivery
EMS Communications will use reasonable endeavors to deliver and/or collect Equipment and/or New Material and install Equipment as mutually agreed with the Client. Delivery and installation dates are estimates; EMS Communications is not liable for delays caused by the Client or its agents.
Upon collection or delivery of Equipment and/or New Material, the Client or its representative must sign EMS Communications’ delivery note, which serves as proof of quantity and quality received.
The Client must inspect the Equipment and/or New Material immediately upon receipt, as they are responsible for identifying any loss or damage.
Claims for damage or discrepancies must be reported in writing within three working days of delivery or collection, referencing EMS Communications' dispatch note number. Equipment must be preserved for investigation. If not reported within this timeframe, it will be deemed accepted as per the Order.
Claims for non-delivery must be submitted in writing within 14 days of the invoice date, quoting the EMS Communications invoice number.
Claims regarding damage from defective installation must be communicated within three working days of installation, also referencing EMS Communications' dispatch note number. The Client must not attempt repairs without EMS Communications' prior written consent.
EMS Communications reserves the right to charge for delivery and installation costs, including expenses for Personnel traveling over 50 miles from EMS Communications premises. The Client is responsible for all delivery costs and customs clearances for international shipments.
If the Client fails to accept delivery or make payment for any instalment, EMS Communications may cancel outstanding deliveries and the Client will be liable for associated losses.
Termination
EMS Communications may terminate any agreement to supply Equipment, New Materials, Personnel, and/or Services immediately by written notice to the Client upon:
Failure to pay charges within seven days of due date.
Breach of any obligations outlined in these Conditions.
Making arrangements with creditors.
Determination that the Client cannot pay debts as they fall due.
Issuance of a winding-up order against the Client (not for reconstruction).
Appointment of an administrator or receiver for the Client's assets.
EMS Communications determines that the Client or its agents are guilty of dishonesty, misconduct, or willful neglect.
Termination does not affect EMS Communications' rights to recover any outstanding charges or damages resulting from the Client’s breach of these Conditions.
Credit and Payment
Credit terms are discretionary. If offered, the Client shall pay all invoiced amounts within 30 days of the invoice date, without retention or set-off, along with any applicable VAT. Payment timing is critical.
The Client must notify EMS Communications of any invoice disputes within 14 days, or the invoice will be considered accepted.
All payments must be made in UK Pound Sterling unless otherwise agreed. Payments are only considered received upon cleared funds. The Client bears any costs related to currency conversion.
EMS Communications reserves the right to withdraw credit facilities if payment terms are not adhered to.
EMS Communications may refuse to supply goods/services or cancel agreements if accounts are overdue.
Notwithstanding clause 6.5, EMS Communications is entitled to...
With the exception of clause 16.5 ems reserves the right in relation to all Orders with a total price in excess of £5,000 to require a deposit of 10% of the total price at the same time the Order is accepted by ems and in relation to all Orders with a total price in excess of £20,000 to require staged payments of the total price as follows:
30% payable on acceptance of the Order by ems;
30% payable at least 12 days prior to the date of commencement of the Services and/or delivery of the Equipment, Personnel and/or New Material; and
40% payable 30 days after completion.
EMS shall be entitled to a general lien on all Equipment and property owned by the Client in ems’s possession (although the Client may have paid for the same in full) in satisfaction of the whole or part as the case may be of any overdue charges, fees and costs due to ems in accordance with these Conditions. ems shall be entitled to offset any sum or sums owing to it from the Client against any sums owed to the Client by ems.
RELATIONSHIP OF THE PARTIES
Both ems and the Client are independent parties and the parties acknowledge that with the exception of clause 13.5.5, neither of them is an agent or partner of the other for any purpose and that each of them is entirely without authority to act on behalf of the other in any manner. ems shall not be responsible to third parties for any claim arising out of the activities of the Client and the Client shall indemnify ems against such claim.
LIABILITY
Other than in respect of death or personal injury arising from the negligence or fraudulent misrepresentation of ems, so far as is permissible in law, ems’s total liability (irrespective of how many claims are made and whatever the subject matter of such claims) to the Client in respect of the Order whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or however otherwise arising, shall be limited to £2,000 or twice the amount of the charges, fees and costs payable by the Client in accordance with the Order (or any subsequent variation under the provisions of these Conditions), whichever is the lower.
The Client agrees and acknowledges that ems shall in no circumstances be liable (whether in contract, tort or otherwise) for any indirect, economic or consequential loss or damage (including any loss of profit or anticipated savings, loss of business or for any increased costs or expenses or otherwise) in connection with any act or omission by ems (or any third party supplier engaged by ems) including but not limited to any delay in delivery of the Equipment and/or New Materials and/or delay in performance or completion of the Services.
The Client places no reliance upon any representation or warranty made by ems, whether written or oral, other than any representation given in writing by a board director of EMS.
The Client agrees to indemnify ems, any related company or any of its employees, agents, consultants or sub-contractors against all or any costs, claims, damages, demands and expenses arising as a result of any use of any material or documentation supplied by or on behalf of the Client infringing the intellectual property or any other similar rights of any other party, or arising as a result of any use of or reliance on any information or instructions issued by or on behalf of the Client.
CONFIDENTIALITY
Each party agrees to treat as secret and confidential the business and trade secrets of the other party and in the Client’s case such obligations shall extend to matters relating to the business practices and cost proposals of ems. Neither party shall disclose copy or use for any purpose any confidential information of the other party. These obligations shall not apply to any information that is in the public domain other than due to a breach by any person of any obligations of confidentiality or in relation to information that was already known by the other party prior to disclosure or which is required to be disclosed by law.
THE CLIENT’S OBLIGATIONS
The Client shall be responsible for those obligations and/or assumptions which are expressed to be the responsibility of the Client in these Conditions, any Proposal or are otherwise agreed between the parties in writing and shall ensure that those obligations are carried out fully and promptly by it or on its behalf.
The Client shall at all times comply promptly with all ems’s reasonable requests for information or approval. Any delay in complying with such requests shall automatically entitle ems to extend any time schedule by an equivalent period.
The Client shall procure that any other contractor appointed by or on behalf of the Client in connection with the Order shall fully co-operate with ems and comply with any reasonable instructions issued by ems in connection with the Order. The Client shall be liable for the actions of such contractors and responsible for managing all such contractors in order to ensure compliance with the Conditions and all applicable rules and regulations and to ensure proper and timely performance of the Order.
In the event of the Client being responsible for the provision of any venue, auditorium or equipment relating to the Order, the Client shall be responsible for ensuring that all necessary and applicable laws, regulations and guidelines are fully complied with in relation to the same.
The Client agrees to be bound by the introduction fee payable to ems by the Client and set out below in respect of the transfer of employment of any employee from ems to the Client if such transfer occurs within a period of 12 months of the employees’ termination of employment with ems:
15% of salaries below £20,000; or
20% of salaries of £20,000 or above.
GENERAL
Any order or instruction required to be given to ems by the Client shall be given by him or his duly authorised agent in writing. If given orally, it shall be confirmed in writing to ems within three days. ems shall not be liable for the consequences of any inaccuracies or misunderstandings resulting from any order or instruction by the Client not received by ems in writing or so confirmed.
EMS reserves the right to sub-contract the provision of all or any part of the Services and to assign or otherwise deal in any way whatsoever with ems’s interest in the Equipment and/or New Materials.
The invalidity, illegality or unenforceability of any of the Conditions or any part of any Condition shall not affect the validity, legality or enforceability of the remainder.
Any forbearance or indulgence on the part of ems, its servants or agents to enforce fully, or at all, any of the Conditions shall not constitute a waiver of ems’s rights and shall be entirely without prejudice to those rights.
Any notice to be given to either party under these Conditions must be in writing and sent by courier or first class recorded delivery post to in the case of ems, Unit 1, 221 New Kent Road, London, SE1 4AG or any subsequently notified address and to the Client at its last notified address. Notices so served will be deemed to have been received 2 working days after the date of dispatch or posting.
EMS shall not be liable for any delay or failure to perform its obligations if that delay or failure is caused by circumstances beyond its reasonable control including but not limited to acts of God, industrial dispute, civil disturbance, strikes or lock-outs or impossibility of or difficulty in obtaining source materials. ems shall be entitled to a reasonable extension of time for the performance of such obligations.
The Client shall not be entitled to assign or transfer the benefit or burden of this contract to any other party without the prior written consent of a board director of EMS.
In the event of any dispute arising out of this agreement, the parties shall attempt to settle it by negotiation. To this end, they shall use their respective best endeavours to consult or negotiate with each other in good faith and, recognising their mutual interests, attempt to reach a just and equitable settlement satisfactory to both parties. Negotiations shall be conducted between the respective senior executives of the parties who have authority to settle disputes. If the parties do not reach such a settlement within a period of 21 days from the date when the dispute was brought to either party’s attention, the parties will attempt to settle it by mediation administered by the Centre for Dispute Resolution (CEDR). To initiate mediation, a party must give written notice to the other parties to the dispute requesting mediation. The mediation shall be conducted in accordance with the CEDR Model Mediation Procedure current at the date of the referral which sets out the procedures to be adopted, the process of selection of the mediator and the costs involved, and which terms are deemed incorporate. The commencement of mediation will not prevent the parties commencing or continuing court proceedings.
This agreement shall be governed by English law and the English courts shall have exclusive jurisdiction save in respect of the enforcement of judgments where such jurisdiction shall be nonexclusive.
Service-specific Terms & Conditions
EQUIPMENT FOR SALE :
Where Equipment is offered for sale by ems to the Client, the following conditions shall also apply:
Return of Equipment
Equipment supplied pursuant to an Order or as may be otherwise agreed in writing between the authorised representatives of ems and the Client may not be returned unless expressly authorised in writing by a board director of ems. ems may apply a handling charge in respect of the Equipment returned and direct that the removal of the Equipment from the Client’s premises shall be effected by ems or its agents at the expense of the Client.
All Equipment returned in accordance with clause 12.1.1 shall be delivered to ems’s premises at Unit 122 Salamanca Street, London SE1 7HX (or such other address as may be notified by ems in writing to the Client), carriage paid.
If the Client wishes to return the Equipment and ems agrees in accordance with clause, the Client shall ensure that the Equipment is properly removed from the installation site and properly and securely packaged for return to the standard to and by the method by which ems despatched the Equipment to the Client.
The Client shall be liable for all damage and loss occasioned to the Equipment during its removal and return to ems and the Equipment shall be at the Client’s risk until a written receipt for the Equipment is despatched by EMS.
Guarantees
Where the Equipment is covered by a manufacturer’s guarantee the manufacturer’s guarantee (where possible under the terms of the guarantee) shall be deemed to be part of these Conditions. Copies of such guarantees shall be made available at the Client’s request. For the avoidance of doubt, any manufacturer’s guarantee does not cover consumables, details of which can be supplied by ems upon written request by the Client.
Where the Client is a dealer buying the Equipment for re-sale the Client agrees that such guarantee shall be brought to the attention of the Client’s customer but the Client shall not otherwise make any representation or give any warranties on behalf of EMS.
Subject to clause 12.2.1, to the extent permissible by law, ems gives no warranty, guarantee or bond in relation to the fitness for purpose or quality of the Equipment and shall not be liable for any defect or fault in the Equipment. To the extent permissible by law, ems gives no warranty, guarantee or bond in relation to the standard of the installation Services to be provided by ems or its agents.
Where an after-sales contract has not been entered into with ems, all Equipment under warranty shall be returned to ems under a back to base only guarantee. Under this guarantee, the responsibility for repair lies with the manufacturer, provided the Client brings the fault to ems’s attention within the warranty period. The guarantee does not cover any installation costs or de-installation costs or delivery costs, which costs shall be the responsibility of the Client.
Where the Equipment sold to the Client is second hand, it shall unless specifically stated otherwise in writing by a board director of ems be “sold as seen” and so far as is permitted by law no warranty or guarantee shall be given by ems in respect of the same.
Installation
If requested by the Client, ems shall at the Client’s expense and risk prepare the installation site for delivery and installation of the Equipment.
Unless otherwise agreed in writing by an authorised representative of ems in accordance with clause 12.3.1, and where installation of the Equipment is to be carried out by ems, the Client shall be responsible for the clearing and preparation of its premises for installation of the Equipment, including provision of connections to utilities and construction works and the Client shall at its expense comply with the reasonable instructions of ems regarding preparation of the installation site for delivery and installation of the Equipment.
If, on delivery of the Equipment, the Client has failed to prepare the installation site or has not completed preparation of the site or such preparation is inadequate in the reasonable opinion of ems, ems shall be under no obligation to proceed with installation of the Equipment until preparation is completed. ems shall be entitled to charge the Client a delay fee per day of delay (or part of a day) in commencing installation, such fee being a genuine pre-estimate of ems’s likely losses arising out of such delay.
ems shall be entitled to sub-contract all or any part of the installation services to a third party.
If ems is responsible for the installation of the Equipment:
t will require free and unrestricted access to the Client’s relevant premises during the planning and installation period. Any restrictions affecting access or installation practices (including, but not limited to, noise, power equipment, voltage regulations, use of particular types of power tools) must be notified to ems prior to the time of placing the Order and ems may charge any costs it reasonably incurs as a result of any restrictions to the Client;
it will where it deems necessary liaise with other trades on aspects of work directly involving the installation, provided the related costs have been previously agreed in writing between the parties;
it will not be responsible for any making good building work, for the provision of any 240v power or cable containment unless specifically agreed to in writing by an authorised representative of ems. Drawings detailing electrical and containment requirements will be supplied where specifically agreed in writing by ems. All prices are exclusive of any onsite electrical wiring.
Risk & Title
Notwithstanding any delivery and subsequent installation, the legal and equitable title to and in the Equipment shall remain with ems (notwithstanding that the Equipment has become incorporated in or affixed to other equipment or products or has been finished electronically or otherwise) until ems has received cleared payment of the full purchase price plus VAT for the Equipment and any interest due pursuant to Clause 6.5 and has received full payment for any other Equipment, New Materials and/or Services previously supplied.
Until cleared payment in full has been received by ems, the Client shall hold the Equipment in a fiduciary capacity for ems and to the extent as is reasonable in the circumstances the Client shall store the Equipment separately from any other assets and
clearly marked as ems’s property and keep and retain them free of any charge, lien or encumbrance and ems shall be entitled to require the Client to deliver the Equipment or any of it to ems or as it shall direct on demand.
If the Client fails to deliver the Equipment on demand pursuant to clause 12.4.2, ems shall be entitled to enter the Client’s premises to collect the Equipment and the Client shall be responsible for all ems’s costs and expenses in connection with so doing. The Client hereby grants a licence to ems, its employees and agents to enter upon the Client’s premises and any other location where the Equipment is situated to remove the Equipment. This licence shall extend to detaching the Equipment from any property to which it has been attached or into which it has been incorporated or from any other products to which it has been attached.
The Client may sell the Equipment by way of bona fide sale in the ordinary course of business but may not otherwise deal with, sell, part with possession of or change the character of or convert or otherwise dispose of or handle any of the Equipment until title has passed to the Client, or if it does so then the sale of the Equipment will constitute a sale by the Client of ems’s property and accordingly the Client will hold the proceeds of that sale on trust for ems.
Upon delivery to the Client, the Client or its carrier, end user, agent or other representative shall sign for the Equipment. In the event that the Client (or any carrier, agent or representative) is not available to provide a signature, ems may retain the Equipment and reserves the right to charge the Client for any resultant delivery and / or storage charges in accordance with its standard rates. Upon delivery, the Equipment shall be at the Client’s risk and the Client undertakes to secure adequate insurance in respect of the Equipment and shall maintain such insurance for the period the Equipment is held at its risk. The Client shall provide a copy of such insurance to ems immediately upon request by ems.
EQUIPMENT FOR RENTAL WITHOUT PERSONNEL & SEPARATE SUPPLY OF PERSONNEL
Where Equipment is offered for rental or Personnel supplied by ems to the Client, the following conditions shall also apply:
ems shall deliver the Personnel and/or Equipment to and, where applicable, install the Equipment at the address specified in the Order or as otherwise agreed in writing by an authorised representative of ems. The Client shall notify ems in writing of the location or locations at which the Equipment and, if applicable, the Personnel are to be deployed, but after the commencement of the Term it shall be the responsibility of the Client to inform the Personnel of relevant locations and schedules.
The Client shall pay to ems the standard daily rate for the hire of the Equipment and/or the provision of the Personnel in accordance with the Order or as otherwise agreed in writing between an authorised representative of ems and the Client.
For the avoidance of doubt, the Client shall be liable for payment of hire charges during the Term or as may be otherwise agreed in writing between an authorised representative of ems and the Client. In addition to the hire charges for the Equipment and Personnel, the Client shall pay all delivery charges.
Title & Property
The Equipment shall remain at all times the property of ems and the Client shall have no right, title or interest therein, save that of a Client of ems under these Conditions.
The Client shall not sell or offer for sale, assign, mortgage, pledge, underlet, lend or otherwise deal with the Equipment or any part or parts thereof or deal with the Client’s interest under the Conditions which interest is personal to the Client and the Client will keep the Equipment in its own possession for its own use and will not allow any lien or other encumbrance to be created in respect of the same. The Client shall not instruct the Personnel to provide services or perform any act other than in relation to the provision of the Services as agreed in writing by an authorised representative of ems and shall not instruct the Personnel to carry out or perform any illegal act.
If the Client defaults in paying the charges, fees and costs pursuant to clause 6, 13.2 and 13.3, ems shall be entitled to enter the Client’s premises or such other premises where the Client is using or storing the Equipment to recover and remove such Equipment and to instruct the Personnel to cease provision of the Services. Such rights shall be without prejudice to the provisions of clauses 6.5 and 6.6.
The amount of the deposit (if any) as required by ems in accordance with the Order shall be returned to the Client without interest when the Equipment has been returned without damage to ems and all charges and other monies due to ems under these Conditions have been paid.
Loss, Damage & Insurance
Any damage to the Equipment during the Term including loss or damage caused by nonfamiliarisation with or misuse of the same is the sole responsibility of the Client who will be charged with the cost of repair or full replacement value of the Equipment as the case may be. For the avoidance of doubt the hire charges shall continue to be payable for the Term or until such Equipment is repaired or replaced, whichever shall be the later.
The Client must not attempt to repair, adapt or alter the Equipment or request a third party to do so, without the prior written consent of an authorised representative of ems.
As far as is permissible in law, any injury or loss suffered by any of the Personnel during the Term shall be the sole responsibility of the Client who shall indemnify ems against all loss and damage which it may suffer as a result of such injury or loss. The Client shall be responsible for ensuring that any injured member of the Personnel shall be transported either to his home address or hospital, as the circumstances dictate, and shall compensate such person for loss of earnings arising out of such injury and for medical expenses incurred.
The Client shall at its own expense for the Term take out and maintain all risks insurance for the Equipment for its full replacement value and for the activities of the Personnel (including personal injury insurance) appropriate to the nature and location of the use to which the Equipment is to be put and/or the activities to be undertaken by the Personnel and its/their transportation to and from such location with a reputable insurer. If requested, such insurer shall be approved by ems as shall the level of cover, but any such approval shall not prevent ems or its Personnel from claiming from the Client any shortfall as regards such insurance in respect of the actual loss suffered.
The Client shall provide proof of such insurance immediately upon ems’s request. If
the Client cannot show ems that it has obtained insurance in accordance with clause 13.5.4, ems may (at its own discretion) arrange insurance on the Client’s behalf for the Term. The Client hereby appoints ems as its agent to arrange for this insurance and the Client shall promptly reimburse ems with an amount equal to the premiums plus a 10% arrangement fee immediately upon request.
Condition of Equipment
ems shall use its reasonable endeavours to ensure that all Equipment let on hire to the Client is sound and in good order and condition at the time of delivery to, or collection by, the Client but it shall be the responsibility of the Client to ensure that the Equipment is fully suitable in all respects for the purpose for which it is hired including type and condition and that it is and remains satisfactory for such purpose.
ems shall use its reasonable endeavours to ensure that all Personnel providing the
Services shall be competent and capable of performing the Services and/or tasks notified to ems by the Client in the Order or as otherwise agreed in writing between the parties and, where appropriate, that such persons are properly qualified in the relevant skills. ems shall direct the Personnel to perform the Services in a skilful and diligent manner and to comply with the reasonable lawful instructions of the Client provided that the Client must satisfy himself that the Personnel to be supplied will be suitable for the provision of the Services.
The Client shall ensure that the Equipment is at all times used in a skilful and proper manner and in accordance with any instructions given to the Client by ems. The Client shall at its own expense at all times keep the Equipment in good condition and further shall take all precautions necessary to ensure its safety and security.
The Client will not open the outer case (if any) of the Equipment or of any item or part of it nor interfere in any way with the Equipment or its mechanism or any name plates or signs or serial numbers on it and will not expose the Equipment to the elements (in particular to salt water and spray) and will keep the Equipment protected in all respects.
The Client must not move the Equipment from the United Kingdom without the prior written consent of an authorised representative of ems.
If the Client wishes to remove the Equipment from the United Kingdom and has obtained ems’s permission in accordance with clause 13.6.5, the Client shall be responsible forobtaining all customs clearances for the export and re-import of the Equipment from and into the United Kingdom and for paying any taxes and duties resulting therefrom. The Client shall be responsible for any continuing charges relating to the hire of the Equipment, at full rates, should the Equipment be held by Customs or other competent authority beyond the end of the Term.
If during the Term any of the Personnel becomes unable to provide the Services by reason of illness or other circumstance, ems shall use its reasonable endeavours to locate a replacement for such person for the Client but shall be under no other liability to the Client in respect of such disability or non availability.
Return of Equipment
Unless otherwise agreed in writing between an authorised representative of ems and the Client it shall be the responsibility of the Client to return the Equipment to ems upon completion of the Term or any extension as agreed in writing by an authorised representative of ems for which it was hired or on termination of the hire for any other reason. If ems specifically agrees in writing to collect the Equipment, the Client shall remain fully responsible for the safety, protection, repair and condition (as aforesaid) of the Equipment until it is in the possession of ems.
If the Client is to return the Equipment to ems, the Client shall ensure that the Equipment is returned in the cases in which the Equipment is supplied by ems and the Client shall be responsible for all damage occasioned to the Equipment and/or the cases as a result of the Client’s failure to comply with this clause 13.7.2.
If the Client does not return the Equipment (or allow it to be collected) in accordance with the Order or as may be otherwise agreed in writing between the authorised representatives of ems and the Client, the Client shall be liable to pay to ems additional charges for the hire of the Equipment and/or the provision of the Personnel at ems’s standard daily rates (available on request).
For the avoidance of doubt, the parties agree that the Client shall not be the employer of the Personnel for the purposes of income tax or National Insurance contributions or otherwise during the Term.
CREATION, DUPLICATION AND/OR MANIPULATION OF MATERIAL
Where ems provides Services to the Client involving the creation, duplication or manipulation of material (including, but not limited to, the creation of graphical elements, tape duplication, video editing, standards conversion, encoding and compression, archive restoration), the following conditions shall also apply:
ems shall exercise due diligence in performing the Services for the Client.
The Client shall deliver the Source Material to ems and shall ensure that each item of Source Material clearly identifies the Client and the Content of the Source Material. In the case of Digital Delivery, the Client shall also ensure that the Source Material is correctly addressed and accompanied by the Order and that the communication is virus free.
In the event that ems considers that the Source Material is of a quality insufficient to allow it to perform the Services satisfactorily, ems shall promptly notify the Client and shall be under no obligation to perform the Services.
To the extent permissible by law, ems’s liability in respect of the provision of the Services shall be limited to the value of the Source Material. For the avoidance of doubt, ems shall not be liable for loss of Content from the Source Material and the Client should retain appropriate copies or insure against such potential loss.
ems shall take reasonable care of any and all materials belonging to the Client in its possession but shall not be liable for any financial loss suffered or incurred by the Client or any third party or any other liability arising in respect of the replacement of such materials.
The Client warrants that it is either the owner of the Content contained in the Source Material or alternatively is authorised, in all cases, by the owner of all intellectual property rights to produce New Material in accordance with the Order. It further warrants that the duplication and/or manipulation of the Content and the provision of the Services will not infringe the intellectual property rights or any other rights of any third party.
The Client shall fully indemnify and keep fully indemnified ems against all claims, loss, damages, expenses or proceedings suffered or incurred by ems in consequence of any breach of undertaking, representation, obligation or warranty or as a result of the Content or New Material infringing the rights of any third party.
In the event that ems believes that the Client is not entitled to give the warranties set out in clause 14.7, ems shall be entitled to postpone performance of the Services until such time as it considers that it has received sufficient supporting evidence of such entitlement.
ems shall use its reasonable endeavours to effect delivery of the New Material and return of the Source Material on the date set out in the Order but shall not be liable for non-delivery by a specific time or date or for any losses thereby incurred by the Client.
Risk & Title
Upon delivery to the Client, the Client or its carrier, end user, agent or other representative shall sign for the New Material or, in the case of Digital Delivery, acknowledge receipt of the New Material by e-mail to ems immediately upon request. In the event that the Client (or any carrier, agent or representative) is not available to provide a signature, ems may retain the New Material and reserves the right to charge the Client for any resultant delivery and/or storage charges in accordance with its standard rates.
Notwithstanding such delivery, the legal and equitable title to and in the New Material shall remain with ems (not withstanding that the New Materials have become incorporated in to other products) until ems has received cleared payment of all monies plus VAT and any interest pursuant to Clause 6.5 due to it in accordance with the Order or as otherwise agreed in writing between the parties and with these Conditions and has received full cleared payment for any other New Materials, Personnel, Equipment and/or Services previously supplied to it by ems.
Any copyright and all other similar rights in all original work and materials produced by or on behalf of ems for the Client shall unless otherwise notified in writing to the Client by an authorised representative of ems be the property of ems (whether or not used by the Client) and unless otherwise specifically agreed by a board director of ems in writing the Client shall have no rights, title or interest in such property.
Any works and/or material referred to in clause 14.12 above shall be available for use by the Client only in respect of the activity set out in the Order and shall not be used by or on behalf of the Client for any other purpose other than with the written prior agreement of and on such terms as may be agreed by a board director of ems.
The Client shall not do or permit to be done any act or thing which may prejudice or infringe ems’s intellectual property rights and shall immediately notify ems of such potential or actual infringement.
Any works and/or material provided by ems to the Client which are subject to the rights of third parties shall be used by the Client strictly in accordance with the terms of any restriction notified by ems and upon the terms of any licence provided.
SERVICE OF EQUIPMENT
Where Services to the Equipment are undertaken by ems for or on behalf of the Client, the following conditions shall also apply:
ems shall exercise reasonable due care and skill in performing the Services for the Client.
ems shall maintain the Equipment described in the Proposal or as otherwise agreed in writing by an authorised representative of ems and the Client in good working order in accordance with these Conditions at the locations specified in the Proposal or as otherwise agreed in writing by an authorised representative of ems and the Client. Maintenance shall be undertaken on a call-out basis together with a number of planned maintenance visits as further specified in the Proposal or as otherwise agreed in writing by an authorised representative of ems and the Client.
Repairs to the Equipment will be carried out at the location(s) specified in the Proposal or as may be otherwise agreed in writing between an authorised representative of ems and the Client. Repairs to the Equipment at any other location will be carried out solely at ems’s discretion. ems shall also be entitled to take the Equipment away for repair if ems, in its sole discretion, deems necessary.
During the Term and subject to the following provisions set out in these Conditions, ems shall replace all defective components of the Equipment at no charge, with the exception of audio and/or video heads, manufacturers’ recommended servicing, projector and/or monitor tubes, bulbs, cables and consumables to include the cost of fitting these items. ems shall be entitled to retain any defective component it has replaced.
Unless otherwise agreed in writing by an authorised representative of ems (and at such agreed additional charge), ems shall not be liable for the repair of the Equipment necessitated by any of the following circumstances:
damage caused by the negligent or malicious acts or omission of the Client, its
employees, authorised agents and/or sub-contractors; or 15.6.2 an occurrence of any of the circumstances set out in clause 15.7;
damage caused by computer virus; or
damage caused by exposure to excessive electrical current; or
damage caused as a result of any use of the Equipment other than in accordance with any manuals or instruction issued by the manufacturer and/or ems; or
damage caused as a result of any other circumstances caused beyond ems’s control, including the effects of repairs and/or adjustments made by any person other than ems.
Any charges, fees and/or costs set out in the Proposal or as may be otherwise agreed in writing between an authorised representative of ems and the Client will, unless otherwise stated, cover all costs associated with the maintenance of the Equipment, including, but not limited to, labour, transport, parts (with the exception of the replacement of parts in accordance with clause 15.5), administration and telephone charges. ems shall be entitled to make a reasonable charge for any expenses incurred as a result of any call-outs by the Client that ems may, in its absolute discretion, deem spurious. Such call-outs shall include, but not be limited to:
any incorrect operation of the Equipment by the Client or any other third party causing an apparent fault; or
the Equipment or any part thereof being in use and therefore not available for any preconfirmed service visit; or
any misuse or mishandling of the Equipment.
The Client shall provide the Personnel with safe and free access to all materials and facilities incidental thereto at all reasonable hours to all Equipment so that they may carry out their duties and shall indemnify ems in respect of any loss or damage of whatsoever nature suffered by ems, its Personnel or any of its agents, sub-contractors or employees in the performance of the Services due to a breach of any of its obligations hereunder and/or the negligence or misconduct of the Client, its employees, agents and/or sub-contractors. The Client will be solely responsible for complying with and bringing any special rules and/or hazards or health and safety issues relating to any premises on which the Equipment is located to ems’s attention.
During the Term, ems shall undertake any necessary work or repairs, subject to the availability of spare parts from the Equipment manufacturers. ems will send qualified Personnel to attend to faults in the Equipment at the address specified in the Proposal or as otherwise agreed in writing between an authorised representative of ems and the Client. Subject to agreement by the Client to pay an additional charge, ems may arrange a visit outside any service hours specified in the Proposal. ems will, upon written request from the Client, supply details of response times, attendance and work undertaken.
The Services shall exclude the repair, modification and/or correction of any fault that cannot be attributed to a general mechanical, electronic, electrical and/or software breakdown. ems shall use its reasonable endeavours to liaise on behalf of the Client with the Equipment manufacturers to rectify any design fault. ems shall notify the Client of any design fault that becomes apparent to ems, and will inform the Client of any resultant costs necessary to rectify such fault prior to any repair, modification or correction of the Equipment. For the avoidance of doubt, ems shall not be liable for any loss or damage caused to the Equipment, or to any other equipment or property of the Client due to any design, operation and/or software fault of the Equipment.
ems shall not be required to carry out any major overhauls and/or rebuilding of any of the Equipment. ems shall not be responsible for renewing, wiring or re-positioning of the Equipment. ems shall, at its sole discretion, elect not to repair any part of the Equipment if, in the opinion of ems, such repair is not economically viable or non-repairable as a direct result of an obsolescence or unavailability of spares. It is agreed that ems shall not be deemed to have acted unreasonably in doing so, and shall inform the Client of its reasons in writing if requested by the Client to do so.
Any charges, fees or costs relating to the Services shall be subject to an annual review by ems, and ems will give the Client one month’s prior written notice of any annual price increase.
Any amendment to the Proposal by the Client, including, but not limited to, any modification to the number of specified planned maintenance visits may result in a revision of charges which the Client agrees to be bound by for the duration of the Term. ems will inform the Client of the effect of any
such amendment within 30 days of receiving notice of amendment from the Client.
Any agreement for the provision of the Services is entered into by ems on the understanding that all Equipment has been well maintained and is in good working order. ems shall be entitled to charge an additional fee to repair, upgrade or re-configure any Equipment that, in the opinion of ems, requires a greater degree of maintenance than would normally be necessary with similar equipment of the same age. ems will notify the Client of any such costs arising under this clause 15.13 within 30 days of such decision.
It is the responsibility of the Client to confirm to ems whether they wish to extend the Term by giving written notice of such intention at least ninety days prior to the date of its expiry. In the absence of such notice, the Term shall continue until terminated by either party giving ninety days notice of termination in writing.
If, during the Term, ems deems it necessary to remove any Equipment temporarily from service, the Client shall be entitled to a discount of 30% off ems’s current hire rate card (available on request) in respect of the hire of any such replacement Equipment. Such Equipment shall be of a similar functionality to the Equipment listed in the Proposal. Any Equipment for rental shall be supplied by ems to the Client subject to the conditions set out in clause 13. For the avoidance of doubt, such discount shall only apply to items obtainable from ems’s own hire stocks and is subject to availability.
PRODUCTION, & EVENT SERVICES
Where ems provides production services in areas including but not limited to video, interactive media, conferences, exhibitions and other live events and related communications consultancy the following conditions shall also apply:
In all cases, ems shall supply a Proposal to the Client setting out details of the Services to be supplied, including, but not limited to, delivery dates and the charges, fees or costs (some of which may be stated to be estimates) relating to them.
Acceptance of the Proposal by the Client shall be deemed to be an Order.
Any subsequent amendment to the Proposal must be agreed in writing between the authorised representatives of ems and the Client. ems will notify the Client of any amendment to the Proposal as a result of late delivery of any materials by the Client to ems in relation to the Services, and the Client agrees to be bound by these amendments.
Unless specifically agreed in writing by an authorised representative of ems, the Client agrees to the following staged payments of the total charges, fees or costs detailed in the Proposal as follows:
40% payable on acceptance of the Order by ems;
30% payable on commencement of the Services, as agreed in the Proposal;
30% payable 30 days after completion of the Order.
If ems agrees to accept cancellation of an Order, the Client agrees to be liable for a proportion of the total charges, fees or costs set out in the Order, determined by the length of notice of cancellation provided by the Client in writing as follows:
Over 60 days – 15% of the total Order value;
31-60 days – 30% of the total Order value;
8-30 days – 60% of the total Order value;
Up to 7 days – 90% of the total Order value.
Invoices issued by ems pursuant to clause 16.6 shall be payable in accordance with clause 6 of these Conditions, and time for payment shall be of the essence. The parties agree that this amount constitutes a realistic pre-estimate of ems’s loss and is not intended to be a penalty. The payment of such cancellation fee shall not in any way prejudice ems’s right to recover from the Client full compensation for any loss or expense arising from such cancellation or variation.
The Client shall confirm a verbal order or instruction given to ems pursuant to clause 11.1 in writing within three days. The Client’s verbal order or written approval of, including but not limited to, the script, storyboards, visuals, designs, timetables and/or estimates shall give ems authority to purchase, enter into production contracts, or enter into agreements/arrangements for any other facilities or services in connection with the Order.
Where ems provides Services to the Client involving the creation, duplication and/or manipulation of the material, ems shall retain any material that has been supplied by and/or produced by ems for the Client in respect of the Services and notify the Client of the need to collect such materials. If such materials have not been collected for a period of two years after such notification, then ems shall be entitled at its sole discretion to destroy such materials.
Upon receipt of written instruction from the Client, ems may agree to retain the material including any New Material in a fiduciary capacity after the period specified in clause 16.9. ems will advise the Client of any cost payable for such a service, including, but not limited to, the cost of repairs, alteration and/or renovation to stored items. Such charges should be settled within 30 days from invoice date pursuant to clause 6.
Any copyright and all other similar rights in all original work and materials produced by or on behalf of ems for the Client shall unless otherwise notified in writing to the Client by an authorised representative of ems be the property of ems (whether or not used by the Client) and unless otherwise specifically agreed by a board director of ems in writing the Client shall have no rights, title or interest in such property.
Any works and/or material referred to in clause 16.11 above shall be available for use by the Client only in respect of the activity set out in the Order and shall not be used by or on behalf of the Client for any other purpose other than with the written prior agreement of and on such terms as may be agreed by a board director of ems.
The Client shall not do or permit to be done any act or thing which may prejudice or infringe ems’s intellectual property rights and shall immediately notify ems of such potential or actual infringement.
Any works and/or material provided by ems to the Client which are subject to the rights of third parties shall be used by the Client strictly in accordance with the terms of any restriction notified by ems and upon the terms of any licence provided.
INTERPRETATION SERVICES
Interpreters require a complete set of documents (programme, agenda, minutes of previous meetings, reports, speeches, etc) in each of the working languages as far in advance of the event as possible, and not later than 7days before the date of the event. It is the Client’s responsibility to produce this documentation and if it is not produced in good time, ems and/or the interpreters supplied by ems can accept no responsibility for the quality of the interpretation supplied.
Unless the interpreters are working in the city where they are domiciled, ems or the interpreters supplied by ems shall be recompensed for all travel costs to and from the venue, travel to and from the station/s and/or airport/s and in the event that the interpreters are required to stay overnight, the Client shall pay for full board and accommodation, all found, in a minimum of a three-star hotel, or shall pay appropriate expenses in lieu. In the event that interpreters booked on behalf of a client require advance payment of travel or any other costs, the Client shall be responsible for paying such costs in advance.
If ems agrees to accept cancellation of an Order, the Client agrees to be liable for a proportion of the total charges, fees or costs set out in the Order, determined by the length of notice of cancellation provided by the Client in writing as follows:
Over 30 days – 0% of the total Order value plus expenses borne by interpreters (if any); ;
21-30 days – 50% of the total Order value plus expenses borne by interpreters (if any);
14 -21 days – 100% of the total Order value plus expenses borne by interpreters (if any);
