Terms and Conditions - Rental
These Terms and Conditions are the terms and conditions applicable to all equipment rental services provided by MELS STUDIOS AND POSTPRODUCTION G.P. (hereinafter “MELS”) to the Customer (the “Customer”).
Rental Services Description
The Customer rents from MELS the equipment (the “Equipment”) described in the exit voucher issued by MELS and signed by the Customer (the “Voucher”), according to the rates indicated in the Voucher, and for the rental period indicated in the Voucher (the “Duration”). All Equipment not specifically and expressly indicated on the Voucher is excluded from the rental. The Customer must sign all Vouchers before taking possession of the Equipment.
Equipment Acceptance
The Customer declares that it has examined the Equipment, or has had a reasonable opportunity to examine the Equipment, and has preferred not to do so, and acknowledges that the Equipment has been delivered to it, that it has accepted the Equipment, and that it is in good working order. The Customer must disclose to MELS' authorized representative any damage it observes to the Equipment at the time of taking possession, failing which the Equipment shall be deemed to be free of any damage whatsoever. The Customer declares that the Equipment is suitable and sufficient in all respects for the purposes for which it is intended.
Equipment Custody and Care
The Customer shall, at its own expense, during the Term, keep and preserve the Equipment in its custody in a safe place, and maintain it in good working order. The Customer agrees that the Equipment shall not be moved to any place other than the address indicated on the Voucher (the “Authorized Location”), by air or otherwise, without the prior written consent of MELS. MELS may, at any time, enter the Authorized Location in order to examine the condition and state of the Equipment, and verify that its use is in compliance. The Customer is solely responsible for the Equipment and for all risks of damage, theft or loss of the Equipment during the Term. The Customer must notify MELS immediately of any damage or loss affecting the Equipment. Upon receipt of such notice, MELS may, at its discretion, without prejudice to its other rights and remedies, and without admission of liability, require, in whole or in part from the Customer: (A) immediate return of the Equipment at the Customer's expense; (B) payment of repair costs; (C) payment of the replacement value established on the day of the loss or damage; or (D) payment of an amount equivalent to the loss of income.
Equipment Transport
Unless otherwise specified in the Voucher, the Customer shall be responsible for all transportation costs of the Equipment, including transportation to the Authorized Location when taking possession of the Equipment and when returning the Equipment to the MELS premises. Regardless of the identity of the carrier, the Customer remains responsible for any loss or damage caused to the Equipment during transport.
Equipment Use
The Customer declares that it is aware of the manner and conditions in which the Equipment must be used, and undertakes to ensure that both it as well any resources making use of it comply with them. The Customer shall not himself, or authorize others to: (A) modify the Equipment; or (B) remove, alter, distort or cover any numbering, lettering or insignia affixed to the Equipment.
Equipment Return
The Equipment must be returned to MELS in the same condition the Customer accepted it in, excepted for normal wear: (A) before 10 a.m. on the return date indicated on the Voucher; or (B) immediately on the termination date of any Voucher. In the event of late return of Equipment, MELS reserves the right to charge the Customer a fee equivalent to the daily rental rate for Equipment not returned, plus an administrative fee of 10 % (the “Late Return Fee”).
If the Equipment is not returned for any reason (including, but not limited to, loss, destruction, theft or force majeure) or is returned damaged, the Customer shall pay MELS, at its option, cumulatively or not: (A) the reasonable cost of repairs, as determined by MELS; (B) the cost of replacing the Equipment at replacement value; or (C) a charge equivalent to the Late Return Fee until the Equipment can be leased back by MELS. The Customer must be present when the returned Equipment is checked and counted. Acceptance by MELS of Equipment returned by Customer shall not be construed as a waiver by MELS of any of its other rights and remedies hereunder or at law, including, but not limited to, any claim for late delivery, damage to or loss of Equipment.
Insurance
The Customer undertakes to maintain the following insurances for the duration of the rental services: (A) public liability insurance with a minimum limit of $ 5,000,000 per event covering the activities of the Customer, its employees and subcontractors, and in which MELS must be named as an additional insured; (B) all-risk insurance covering at least the full replacement value of the Equipment, in particular against any direct or indirect loss, theft or damage. Such insurance shall waive the right of subrogation against MELS, its employees and subcontractors. An insurance certificate specific to MELS must be provided on request. Deductibles are the sole responsibility of the Customer.
Equipment Ownership
The Equipment remains the exclusive property of MELS at all times. The Customer's rights are limited to the temporary rental of the Equipment, in strict compliance with these Terms and Conditions. Nothing herein shall be construed as transferring to the Customer any right or title whatsoever in the Equipment. The Customer agrees not to remove or cover the label or nameplate on the camera or Equipment indicating MELS ownership.
If any of the Equipment is used for filming or photography, in whole or in part, of an audiovisual work, the Customer agrees that MELS shall receive on-screen credit in the closing credits, in the following form or any other form requested by MELS or mutually agreed upon by the parties: “Camera and lenses supplied by MELS Studios and Postproduction G.P.”. MELS may mention, free of charge, on its website and in any media it deems appropriate, that the Customer is its customer and, on this occasion, indicate the Equipment and production covered by the rental and any other information it deems appropriate.
Liens
The CLIENT may not incur or authorize the incurring of any charge, lien, security interest, levy or mortgage (collectively a “Lien”) on or against all or part of the Equipment. The Customer must notify MELS immediately if a Lien is issued on or against all or part of the Equipment, or if the Equipment is subject to or threatened with seizure. MELS may, at its discretion, without prejudice to its other rights and remedies, and without liability: (A) require the Customer to immediately release, at its own expense, any Lien affecting the Equipment; or (B) release any Lien affecting the Equipment, and claim reimbursement from the Customer of all corresponding costs incurred by MELS for the release of such Liens.
Rental Cancellation
The Customer may cancel its rental of the Equipment by giving MELS written notice to that effect, subject to the following penalties, which are variable, depending on the date of receipt by MELS of such notice:
Less than 24 hours before the start of the rental of the Equipment specified in the Voucher: 100 % of the rental price of the cancelled Equipment.
Between 24 and 48 hours before the start of the Equipment rental period specified in the Voucher: 70 % of the rental price of the cancelled Equipment.
More than 48 hours before the start of the Equipment rental period specified in the Voucher: 25 % of the rental price of the cancelled Equipment.
Billing
All Equipment rental fees exclude applicable taxes. Unless otherwise agreed with MELS, all new Customers must open an account and complete a credit application in advance for billing purposes. Unless otherwise specifically agreed with MELS, all fees indicated on the Voucher are payable within 30 days of the invoice date, in Canadian currency, subject to the Customer's credit approval (the “Payment Term”). No additional delay will be granted. MELS reserves the right, at any time: (A) to grant or refuse credit terms to the Customer, including the right to revoke any credit terms previously granted; (B) to issue invoices for any rental covered by a Voucher upon the signature of the Voucher; (C) to require a deposit prior to the rental of the Equipment; and (D) to require the Customer to provide any documents or information regarding the structure of the project for which the Equipment is being rented. Any invoice not paid by the last day of the Payment Term will bear interest of 19.56 % per annum, calculated monthly at a rate of 1,5 %. If an invoice remains unpaid for more than 90 days, the associated account may be blocked until the situation is rectified. Furthermore, if MELS uses the services of a professional to collect the amounts owed to it, MELS reserves the right to add to the invoice and claim from the Customer an additional amount of 15 % of the unpaid balance representing the applicable collection fees. The Customer may not invoke non-receipt of invoices to justify non-payment. Any additional amount billed by MELS shall be deemed to represent fair compensation for the rental of the Equipment, to the benefit and advantage of the Customer. Rates and payment terms are based on credit information at the time of rental. In the event of a change in this information, the Customer acknowledges that MELS may revise the rates and terms of payment upon simple notice.
Compensation
Without prejudice to its other rights and recourses, MELS reserves the right to offset any amount owed by the Customer to MELS against any amount owed by Groupe TVA Inc., its subsidiaries or any other company affiliated with MELS to the Customer, so that only the net difference will be payable.
Representations and Warranties
The Customer represents and warrants, on behalf of itself and its employees and subcontractors that: (A) it is a duly incorporated entity, fully authorized to operate in accordance with applicable laws; (B) it holds all rights, licenses, authorizations necessary to enter into this Agreement, execute the Voucher and rent the Equipment; (C) it has obtained all necessary permits and licenses to use the Equipment; (D) it has the experience and knowledge to use the Equipment safely, and will ensure that only trained resources use the Equipment; (E) the performance of the Voucher does not violate any agreement, act or arrangement, verbal or written, to which it is a party; (F) it will use the Equipment in accordance with all applicable laws, regulations, codes and standards including all safety rules; (G) it will comply with MELS' current and all updated applicable Code of Ethics and corporate policies; and (H) it will not make careless or reckless use of the Equipment. MELS represents and warrants that it is a duly incorporated company with all necessary power and authority to enter into this Agreement.
Liability
The Customer agrees to take up the defence of MELS, its subcontractors, their employees, directors, representatives and affiliated, related and connected companies (collectively the “Indemnified Parties”), from and against any and all actions, suits, demands, claims, delays, failures to meet schedules, costs and damages of any nature whatsoever in connection with the rental of the Equipment, including, without limitation: (A) compliance with laws, codes, standards and regulations; (B) intellectual property rights; (C) proprietary rights of any kind; (D) inaccuracies in its representations, warranties and obligations; and (E) use or operation of the Equipment. Notwithstanding the foregoing, no settlement shall be entered into by the Customer without the consent of MELS, acting reasonably.
Limitation
Except as otherwise provided in the Voucher or in the event of gross misconduct, willful misconduct, or gross negligence, and always to the fullest extent permitted by law, the Customer acknowledges that MELS shall have no obligation nor incur any liability, statutory or contractual, and shall not be liable for damages of any kind (including direct, indirect, special, incidental or consequential damages or damages for loss of profits, business interruption or loss of data) and makes no warranties of any kind, express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose, or arising from commercial practices or uses in relation to: (A) loss of revenue, profit, earnings and any other direct, indirect, consequential or incidental damages in connection with the Equipment; (B) any force majeure event; (C) the profitability, results, scope and effectiveness of the Equipment; (D) the quality of the Equipment and its fitness for a specific purpose, unless otherwise specified in the Purchase Order; (E) compliance with legal standards; and (F) all inherent risks, including those of storage and shipment of the Equipment. MELS (INCLUDING THE INDEMNIFIED PARTIES) SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF THE CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF THE PERFORMANCE OR NON-PERFORMANCE OF THE RENTAL AND ANY STIPULATION HEREOF (INCLUDING DAMAGES SUSTAINED BY THIRD PARTIES). In all cases, MELS and the Indemnified Parties’ liability shall not exceed 50 % of the rental rates for the Equipment, and the limitations and exclusions apply even if MELS or the Indemnified Parties knew or should have known of the possibility of such damages.
Force Majeure
Force majeure events include wars, weather storms, floods, strikes, lockouts, mass layoffs, fires, interruptions of audio, visual or computer signals caused by emergency, computer attack, technical or security breakdowns, collective necessities, municipal, provincial or federal government requests or for any reason beyond the control of MELS, including labour disputes, technical or computer difficulties, vandalism, or loss or theft of Equipment prior to the start of the rental period. A party may not be in default due to a force majeure event that prevents it from fulfilling its obligations. In the event that MELS is unable, due to a force majeure event, to supply the Equipment, MELS may, at its discretion, in whole or in part: (A) rent the Equipment at a later date and, if necessary, adjust the charges set out in the Voucher; (B) rent the Equipment from a third party and, if necessary, adjust the charges set out in the Voucher; (C) modify the Equipment and, if necessary, adjust the charges set out in the Voucher; or (D) deduct from the charges an amount proportional to the Equipment that cannot be rented. The Customer shall not be released from its obligation to pay the fees for the duration of the force majeure event, and the Customer may not claim any other compensation or remedy from MELS, including any payment of damages, the aforementioned measures being the only available remedies and excluding all other remedies.
Suspension
Without prejudice to its other rights and remedies, and without liability, MELS reserves the right to suspend the rental of the Equipment, in the event of (A) the Customer's failure to pay invoices when due; (B) the Customer exceeding its authorized credit limit under specific terms and conditions; (C) the Customer being in default of any term or condition hereof; or (D) the sale of the Customer's assets or shares.
Termination
MELS may terminate, at its discretion, any Voucher upon 10 days' written notice to the Customer. Either party may terminate any Voucher by written notice to the other party if the other party: (A) becomes or is declared insolvent or bankrupt; (B) becomes subject (voluntarily or involuntarily) to any proceedings for bankruptcy, insolvency, receivership or liquidation; or (C) defaults in the performance of its obligations and such default is not remedied within 10 days of written notice to do so.
Notice
Any notice given by either party hereto shall be in writing and sent to the other party by registered mail, to the address indicated on the Voucher, and such notice shall be deemed to have been received on the next business day. The Customer must also send, under penalty of nullity, a copy of any notice of default to [email protected]
Assignment
The Customer may not transfer, assign, lease, sublease or otherwise dispose of the Equipment, the Voucher, including any rights thereto, without MELS' prior written consent. MELS may entrust to third parties the performance of all or part of certain services necessary to fulfill its obligations under any Voucher or these Terms and Conditions, and may assign and transfer to a third party of its choice the Voucher and the corresponding receivables.
Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the laws of the Province of Québec. The parties agree to submit to the exclusive jurisdiction of the courts of the Province of Québec.
No Waiver
In the event of a breach of these Terms and Conditions by one of the parties, the fact that the party does not assert its rights in relation to the clause in question shall not be considered as a waiver on its part to do so in the future. The Customer waives the application of Section 2125 et seq. of the Civil Code of Québec.
Severability
Any clause of these Terms and Conditions which is found to be void, invalid, unenforceable or of no force or effect, in whole or in part, shall be severed from these Terms and Conditions, and shall be deemed not to affect the remaining clauses set forth in these Terms and Conditions, which shall remain in full force and effect to the fullest extent permitted by applicable law.
Entire Agreement
These Terms and Conditions and the Voucher constitute the entire agreement between the parties with respect to the rental of the Equipment, and supersede all written or oral agreements, discussions, arrangements or negotiations. Except as expressly stipulated herein, no modification to the Terms and Conditions or the Voucher shall be binding upon the parties unless made in writing and signed.
Survival
The sections relating to Intellectual Property, Limitation, Liability and any other clause of these Terms and Conditions or the Voucher which, by their nature, are intended to survive termination or expiration of the Voucher, shall survive termination or expiration of the Voucher.
Relationship Between the Parties
This Agreement does not constitute, and shall not be deemed to constitute, a partnership or joint venture between the parties, and neither party nor their respective directors, officers, employees or agents shall, on the grounds of the performance of their obligations, be deemed to be an agent or employee of the other party. The Customer acknowledges that MELS may enter into project agreements with companies competing with the Customer.
Successors
These Terms and Conditions apply to the benefit of the parties and their successors, assigns, heirs, and transferees.
