T&C

STANDARD TERMS AND CONDITIONS OF HIRE (“Terms”)

The following Terms of Progressive Broadcast Hire Ltd (“PBH”) form the basis of the Contract between PBH and the Customer.
Where there is any inconsistency between the provisions hereof and the Confirmation (defined below), the provisions of the Confirmation will apply.

  1. Interpretation
    1. In these Terms, unless the context otherwise requires, the following expressions have the following meanings:-

      • “Confirmation”
        the email/letter sent by PBH to the Customer confirming the details of the Order
        (including any amendments to the Confirmation agreed by both parties).
      • “Consumables”
        those items sold by PBH to the Customer from time to time including,
        but not limited to, video cassette tapes and batteries.
      • “Contract”
        each individual offer by PBH accepted by the Customer in accordance
        with Clause 2 incorporating these Terms.
      • “Customer”
        the person who, in the course of their business, has agreed to hire
        the Equipment from PBH.
      • “Delivery Date”
        the date set out in the Confirmation or such other date agreed in
        writing by the parties.
      • “Delivery Address”
        the address for delivery set out in the Confirmation or such other
        address agreed in writing by the parties.
      • “Equipment”
        the equipment supplied by way of hire by PBH as set out in the
        Confirmation together with such other equipment as may be agreed in writing by the parties.
      • “Hire Charge”
        the fee for the hire of the Equipment as set out in the Confirmation
        payable in accordance with Clause 4.
      • “Hire Period”
        the period of hire of the Equipment as set out in the Confirmation.
      • “Order”
        the order placed by the Customer (by telephone or otherwise) for
        the hire of the Equipment.
      • “PBH”
        Progressive Broadcast Hire Ltd (company number SC324433) whose registered
        office is at Unit 6 St Luke’s Business Estate, St Luke’s Place, Glasgow G5 0TS
      • “Price”
        the price of the Consumables as set out in the Confirmation payable in accordance with Clause 4.
    2. The headings in these Terms are for ease of reference only and
      shall not affect the construction or interpretation of the Contract.
    3. Words importing the singular include the plural and vice versa and words importing any gender include every gender.
    4. Any reference to “person” shall include any partnership, firm, company, body corporate, corporation or organization.
    5. Any reference to “writing” or “in writing” includes emails and facsimiles.
  2. Application of Terms
    1. Subject to Clauses 2.E and 14.C, these Terms shall apply to all Orders
      and Contracts to the exclusion of all other terms and conditions (including
      any terms and conditions which the Customer supplies or purports to apply).
    2. The Confirmation shall constitute an offer by PBH to provide the Equipment
      for hire. The Customer shall accept this offer by returning the signed
      Confirmation or by returning the completed Confirmation email to
      bookings@progressivebroadcast.com
    3. Where the Customer does not accept, reject or request an amendment to the
      Confirmation within 4 normal working hours of the Confirmation being sent to
      the Customer, the Customer shall be deemed to have accepted PBH’s offer.
    4. Each Confirmation accepted by the Customer in accordance with this Clause
      2 will create a separate Contract governed by these Terms.
    5. PBH reserves the right to amend these Terms from time to time and shall
      notify the Customer of such amendments. The Customer shall be required to accept
      the new Terms before an Order can be placed and a new Contract formed.
  3. Hire of the Equipment and Sale of Consumables
    1. In consideration of the payment by the Customer of the Hire Charge, PBH agrees
      to hire the Equipment to the Customer for the Hire Period subject to these Terms.
    2. In consideration of the payment by the Customer of the Price, PBH agrees to supply
      and sell to the Customer the Consumables set out in the Confirmation subject to these Terms.
  4. Payment of the Hire Charge and the Price
    1. PBH may invoice the Customer for the Hire Charge and the
      Price before, on or immediately following delivery of the Equipment
      and the Consumables to the Customer. Time shall be of the essence
      in respect of the Customer’s payment.
    2. Unless otherwise stated in the Confirmation, the Customer shall
      pay the Hire Charge and the Price within 30 days of PBH’s invoice.
    3. All sums due are exclusive of VAT or other applicable sales tax which
      shall be paid by the Customer at the appropriate rate.
    4. Where the Customer fails to make payment within 10 days from the due
      date then, without prejudice to any other right or remedy available to PBH,
      PBH shall be entitled to cancel the Contract and/or suspend any delivery of
      the Equipment and Consumables or where the Equipment and Consumables have
      already been delivered enter the Delivery Address and remove the same until
      the outstanding amount has been received and the Customer hereby grants to PBH an
      irrevocable licence to enter such premises for this purpose. PBH may also charge
      the Customer interest (both before and after any judgement is made) on the amount
      unpaid at the rate of 4% above HSBC’s base rate in force from time to time until
      full payment is made.
    5. The Customer shall make all payments due without any deduction whether by way
      of set-off, counterclaim, discount, abatement or otherwise.
  5. Delivery
  6. PBH shall use all reasonable endeavours to deliver the Equipment and the
    Consumables to the Customer at the Delivery Address on or before the Delivery
    Date. For the avoidance of doubt the time for delivery shall not be of the essence
    and PBH shall have no liability to the Customer if it fails to meet any Delivery Date.

  7. Customer’s Obligations
    1. During the Hire Period, the Customer shall:
      1. keep the Equipment fully insured against all risks of loss and damage, to
        the full replacement value of the Equipment as new, from the time that delivery
        is effected or tendered until the Equipment is returned to PBH and the Customer
        shall procure that the interest of PBH is noted by the insurance company and on
        the insurance policy and provide forthwith to PBH at PBH’s reasonable request,
        a copy of the certificate of such insurance;
      2. ensure that the Equipment is used in a proper manner by competent trained persons
        only or by persons under their immediate supervision;
      3. keep and operate the Equipment in a proper and prudent manner;
      4. ensure that the external surfaces of the Equipment are kept clean and in a good condition;
      5. not itself, nor permit its employees, agents, sub-contractors or servants to take the Equipment
        outside of the United Kingdom without the prior written consent of PBH. Such consent shall not be
        unreasonably withheld subject always to the Customer arranging and paying for the insurance of the
        Equipment to the full replacement value for such time as the Equipment is overseas;
      6. not interfere or permit interference with the Equipment or any part thereof nor alter, erase,
        deface or overprint any trade mark or any other notice of proprietary rights placed on the Equipment;
      7. store or otherwise keep the Equipment in such a way as clearly to indicate at all times that the
        Equipment is owned by PBH and shall not remove, obscure or delete any mark placed on the Equipment
        by PBH which may enable the Equipment to be so identified; and
      8. not attempt to repair the Equipment nor permit any person other than PBH’s authorized
        representatives or those approved by PBH to repair the Equipment.
    2. The Customer shall forthwith upon the occurrence of any loss or damage to
      the Equipment notify PBH in writing. In the case of damage the Customer shall
      return the Equipment to PBH and PBH will arrange for the repair of the Equipment
      or (if lost or if PBH in its absolute discretion considers the Equipment to be
      beyond economic repair) for its replacement.
      1. the cost of any repair or replacement (whether on loss or damage) shall be
        the responsibility of the Customer who will forthwith reimburse PBH on an
        indemnity basis the full cost thereof immediately after notification in writing
        of such costs; and
      2. until the Equipment (or any replacement) is returned to PBH in good working condition
        the Customer shall remain liable to pay the Hire Charge in accordance with Clause 4.
  8. Title to the Equipment
    1. The Equipment shall at all times remain the property of PBH.
    2. The property in the Consumables shall not pass to the Customer until
      PBH has received in cash or cleared funds payment in full of the Price and
      the Hire Charge and other goods and/or services agreed to be sold or supplied
      by PBH to the Customer for which payment is then due.
    3. The Customer hereby grants an irrevocable licence to PBH, its agents and
      servants to enter into its premises and collect the Equipment if the Customer
      is in breach of Clause 6.A or if PBH has, in any way whatsoever, dealt with or
      attempted to deal with the Equipment as either legal or equitable owner.
  9. Warranties
    1. Subject to the exception set out in Clause 8.E below and the limitations
      upon its liability in Clause 11 below, PBH warrants and undertakes to the Customer that:-

      1. its title to and property in the Equipment and Consumables are free and unencumbered
        and that it has the right, power and authority to enter into the Contract;
      2. any services provided by PBH under the Contract shall be supplied and rendered with
        reasonable skill, care and diligence by appropriately experienced, qualified and trained
        personnel in accordance with good industry practice; and
      3. the Equipment and Consumables supplied to the Customer shall be of satisfactory quality,
        reasonably fit for their purpose and free from defects in design, materials and workmanship.
        For the avoidance of doubt PBH makes no warranties as to the suitability of the Equipment.
    2. The Customer warrants and undertakes to PBH that it is, and shall remain
      throughout the Hire Period free and entitled to enter into the Contract.
    3. Subject to Clause 8.A, the Customer acknowledges and accepts that PBH
      gives no other warranties of any kind in relation to the Equipment or Consumables
      and that any conditions, warranties, terms and undertakings which would otherwise
      be implied into the Contract (whether by statute or otherwise) relating to the
      Equipment or Consumables, or the provision of any other goods or services by PBH
      to the Customer under the Contract are hereby excluded to the fullest extent permitted by law.
    4. Except as provided below, where any defect appears in Equipment during the
      Hire Period PBH shall at its election either repair the Equipment and/or supply
      replacement Equipment as soon as reasonably practicable. For the purposes of this
      Clause 8, a “defect” means any non-performance with Clause 8.A(iii).
    5. PBH shall not be liable for a breach of the warranty in Clause 8.A(iii) unless:-
      1. the Customer gives written notice of a defect to PBH within 14 (fourteen)
        days of the time when the Customer discovers or ought to have discovered the
        defect; and
      2. PBH is given a reasonable opportunity after receiving such notice to examine
        the Equipment and the Customer (if asked to do so by PBH) returns such Equipment
        to PBH’s place of business at the Customer’s cost for the examination to take
        place there.
    6. PBH shall not be liable for a breach of the warranty in Clause 8.A(iii) if a defect
      arises as a result of:

      1. defects or errors resulting from any modifications of the Equipment made by
        or any act or omission on the part of the Customer or any person other than a
        person acting on behalf of PBH;
      2. a failure by the Customer or its sub-contractors, agents, officers or
        employees to use the Equipment in accordance with good industry practice;
      3. any attempt by any person other than PBH’s personnel to adjust, repair
        or maintain the Equipment;
      4. defects or errors resulting from any fluctuation of electric power, humidity
        controls or other adverse environmental conditions due to whatever cause;
      5. accident, transportation, neglect, misuse or default of the Customer or its
        employees, sub-contractors or agents or any third party; or
      6. an event of force majeure, as defined in Clause 11.
    7. Where any defect in the Equipment is due to the default of the Customer or
      its sub-contractors, agents, officers or employees under Clause 8.E:-

      1. PBH may charge the Customer for the repair of the Equipment in accordance
        with its standard scale of charges from time to time, including but not limited to the
        costs of repair, removal and transportation of the Equipment; and
      2. until the Equipment (or any replacement) is returned to PBH in good working condition
        the Customer shall remain liable to pay the Hire Charge in accordance with Clause 8.D
  10. Limitation of Liability
    1. Nothing in the Contract shall operate to exclude or limit PBH’s liability for:
      1. death or personal injury caused by the negligence of PBH, its servants,
        agents, employees or subcontractors;
      2. any breach or contravention of the conditions implied by Section 12 of
        the Sale of Goods Act 1979 and Section 2 Supply of Goods and Services Act 1982;
      3. fraudulent misrepresentation; or
      4. any breach of any undertaking as to title, quiet possession and freedom from
        encumbrance implied by law.
    2. Subject to Clause 9.A, PBH shall not be liable to the Customer for any loss of,
      damage to or costs in respect of:

      1. loss of profit, anticipated profits, revenues, anticipated savings;
      2. goodwill or business opportunity;
      3. indirect or consequential loss or damage whether foreseeable, known, foreseen or otherwise.
    3. PBH’s total aggregate liability in contract, tort (including negligence or breach of statutory
      duty), misrepresentation or otherwise, arising in connection with the performance or contemplated
      performance of the Contract shall be limited to the Contract Hire Charge and the Price.
  11. Term and Termination
    1. Subject to Clause 10.C, the Contract shall commence on the date PBH’s
      Confirmation is accepted by the Customer in accordance with Clause 2 and shall
      continue in force for the Hire Period.
    2. Without prejudice to any other remedies available, either party shall be
      entitled to terminate the Contract with immediate effect by giving written notice
      of termination to the other if:

      1. the other commits a material breach of the Contract which, in the case of a
        breach capable of remedy, shall not have been remedied within fourteen (14) days
        of the receipt by the other of a notice identifying the breach and requiring its remedy; or
      2. the other party shall have a receiver or administrative receiver
        appointed over it or any part of its undertaking or assets or shall
        pass a resolution for winding up (otherwise than for the purpose of
        a bona fide reconstruction) or if a court of competent jurisdiction
        shall make an order to that effect or if the other shall enter into any
        voluntary arrangement with its creditors or shall be subject to an
        administration order or shall threaten to cease or cease to carry on business.
    3. Notwithstanding Clause 10.B(i) PBH may terminate the Contract with immediate effect
      if the Customer fails to pay any sums due by it to PBH within 10 days after the due date.
    4. Clauses 7, 8 and 9 shall survive termination of the Contract howsoever caused.
    5. Any termination of the Contract shall be without prejudice to any other rights
      or remedies either party may be entitled to hereunder or at law.
    6. At the end of the Hire Period or (if earlier) immediately upon termination of the Contract,
      the Customer shall, at its own expense, forthwith return to PBH all Equipment supplied
      to the Customer by PBH under the Contract.
  12. Force Majeure
  13. Neither party shall be liable to the other for any delay in performing or any failure to perform any of its
    obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so
    delaying (including, without limitation, any vis major, fire, flood, strike, lock-out or other form of industrial action).

  14. Notices
  15. Any notice or other document to be given under the Contract shall be in writing and delivered by hand or
    sent by first class pre-paid letter, e-mail or facsimile transmission (to the address or e-mail or facsimile number of
    the other party set out in the Confirmation (or such other address or number as may have been notified) and any
    such notice or other document shall be deemed to have been served and/or delivered if hand-delivered at the time
    of delivery, if by first class post, 48 hours after posting and if sent by e-mail or facsimile on transmission.

  16. Assignment And Sub-Licensing
    1. PBH shall be entitled to sub-contract, transfer or assign any or all of its rights
      and/or obligations under the Contract without restriction.
    2. The benefits and obligations conferred by the Contract upon the Customer are personal
      to the Customer and shall not be capable of being assigned, delegated, transferred,
      sub-contracted or otherwise disposed of and the Customer shall not purport to assign,
      transfer, sub-contract or dispose of the same.
  17. General
    1. If any provision in the Contract shall in whole or in part be held to
      any extent to be illegal or unenforceable under any enactment or rule of
      law that provision or part thereof shall to that extent be deemed not to form part of
      the Contract and the enforceability of the remainder of the Contract or any part
      thereof shall not be affected.
    2. The Contract contains the entire understanding of the parties with respect
      of the subject matter hereof and supersedes all prior agreements. Each party
      acknowledges that, in entering into the Contract, it has not relied on and shall have
      no right or remedy in respect of, any statement, representation, assurance or warranty (whether
      made negligently or innocently) other than as expressly set out in the Contract.
    3. No variations to the Contract or these Terms will be effective unless agreed in
      writing and signed by a duly authorized representative of each party.
    4. For the purposes of the Contracts (Rights of Third Parties) Act 1999 and
      notwithstanding any other provision of the Contract, the Contract is not intended to,
      and does not give any person who is not a party to it any right to enforce any of its provisions.
    5. The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to any
      Contract promptly through negotiation. If the matter is not resolved through negotiation the parties will attempt in
      good faith to resolve the dispute or claim through an alternative dispute resolution procedure as recommended to
      the parties by CEDR or another recognized mediation provider. The commencement of mediation will not prevent
      the parties commencing or continuing Court proceedings.
    6. No failure of either party to exercise, and no delay in exercising, any right or remedy provided under the
      Contract or by law herein contained shall operate as a waiver of such right or remedy.
    7. PBH and the Customer are each independent contractors with respect to each other and nothing in the
      Contract shall create any association, partnership or joint venture relationship between them.
    8. The Contract shall be governed by Scottish law and shall be subject to the exclusive jurisdiction of the
      Scottish Courts.


STANDARD TERMS AND CONDITIONS OF SALE (“Terms”)

The following Terms of Progressive Broadcast Hire Ltd (“PBH”) form the basis of the Contract between PBH and the Customer. Where there
is any inconsistency between the provisions hereof and the Confirmation (defined below), the provisions of the Confirmation will
apply.

  1. Interpretation
    1. In these Terms, unless the context otherwise requires, the following expressions have the following meanings:-

      • “Confidential Information”
        the terms of the Contract and all information obtained by one party from the other pursuant to the
        Contract which is marked as confidential, or ought reasonably to be regarded as confidential.
      • “Confirmation”
        the email/letter sent by PBH to the Customer confirming the details of the Order (including any
        amendments to the Confirmation agreed by both parties).
      • “Contract”
        each individual offer by PBH accepted by the Customer in accordance with Clause 2 incorporating these Terms
      • “Customer”
        the person who, in the course of their business, has agreed to purchase the Media Products from PBH.
      • “Customer’s Materials”
        all films, master disks, information, data media, software, text, visual images, pictures and other
        materials supplied by the Customer for use in or to form part of the Media Product(s).
      • “Delivery Date”
        the date set out in the Confirmation or such other date agreed in writing by the parties.
      • “Delivery Address”
        the address for delivery set out in the Confirmation or such other address agreed in writing by the parties.
      • “Intellectual Property”
        all patents, registered or unregistered trade marks, trade and business names, logos and devices, registered
        or unregistered designs, registered or unregistered copyrights, database rights and moral rights, rights in
        computer software, domain names, rights in confidential information, applications for any of the above and the
        right to apply for them in any part of the world and any other intellectual property rights (whether now subsisting
        or in the future created) both in the UK and all other countries for the full period of those rights
        (including any extensions or renewals).
      • “Job Description”
        the scope of the Services to be provided by PBH under the Contract.
      • “Media Products”
        those physical or electronic items produced as a result of PBH performing the Services including without limitation
        videotapes, audiotapes, CDs and DVDs and including any installment of the Media Products.
      • “Order”
        the order placed by the Customer (by telephone or otherwise) for the purchase of the Media Products.
      • “PBH”
        Progressive Broadcast Hire Ltd (company number SC324433)
        whose registered office is at Unit 6 St Luke’s Business Estate, Glasgow G5 0TS.
      • “Price” the price charged by PBH to the Customer for the Media Product(s)
        and handling the Customer’s Materials as set out in the Confirmation.
      • “Services”
        the services to be provided by PBH under the Contract including, without limitation, dubbing,
        copying, editing, mixing, mastering, translating, voicing over, formatting or other services
        in relation to the Customer’s Materials as described in the Confirmation.
      • “Use” to copy, adapt, publish or otherwise exploit, where applicable, the Customer’s Materials and/or the Media Product(s).
    2. The headings in these Terms are for ease of reference only and shall not affect the construction or
      interpretation of the Contract.
    3. Words importing the singular include the plural and vice versa and words importing any gender include every gender.
    4. Any reference to “person” shall include any partnership, firm, company, body corporate, corporation or organization.
    5. Any reference to “writing” or “in writing” includes emails and facsimiles.
  2. Application of Terms
    1. Subject to Clauses 2.E and 17.D these Terms shall apply to all Orders and Contracts to the exclusion of all
      other terms and conditions (including any terms and conditions which the Customer supplies or purports to apply).
    2. The Confirmation shall constitute an offer by PBH to sell the Media Products. The Customer shall accept this
      offer by returning the signed Confirmation by fax or by returning the completed Confirmation email to PBH.
    3. Where the Customer does not accept, reject or request an amendment to the Confirmation within 4 normal
      working hours of the Confirmation being sent to the Customer the Customer shall be deemed to have accepted PBH’s offer.
    4. Each Confirmation accepted by the Customer in accordance with this Clause 2 will create a separate
      Contract governed by these Terms.
    5. PBH reserves the right to amend these Terms from time to time and shall notify the Customer of such amendments.
      The Customer shall be required to accept the new Terms before an Order can be placed and a new Contract formed.
  3. Basis of Sale
  4. In consideration of the payment by the Customer of the Price and the provision of the Customer’s Materials to PBH,
    PBH agrees to sell the Media Products and provide the Services to the Customer in accordance with these Terms.

  5. Price and Payment
    1. PBH may invoice the Customer for the Price before, on or immediately following delivery of the Media
      Products to the Customer. Time shall be of the essence in respect of the Customer’s payment.
    2. Unless otherwise stated in the Confirmation, the Customer shall pay the Price within 30 days of PBH’s invoice.
    3. All sums due are exclusive of VAT or other applicable sales tax which shall be paid by the Customer at the
      appropriate rate.
    4. Where the Customer fails to make payment within 10 days from the due date then, without prejudice to
      any other right or remedy available to PBH, PBH shall be entitled to cancel the Contract and/or suspend any
      delivery of the Media Products or provision of the Services. PBH may also charge the Customer interest
      (both before and after any judgement is made) on the amount unpaid at the rate of 4% above HBSC’s base rate
      in force from time to time until full payment is made.
    5. The Customer shall make all payments due without any deduction whether by way of set-off, counterclaim,
      discount, abatement or otherwise.
  6. Delivery
    1. PBH shall use all reasonable endeavours to deliver the Media Products to the Customer
      at the Delivery Address on or before the Delivery Date. For the avoidance of doubt the
      time for delivery shall not be of the essence and PBH shall have no liability to the
      Customer if it fails to meet any Delivery Date.
    2. If the Media Product(s) are to be delivered in installments, the Contract will
      be treated as a single Contract and not severable.
    3. The quantity of any consignment of Media Product(s) as recorded by PBH upon despatch
      from PBH’s place of business shall be conclusive evidence of the quantity received by the
      Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
    4. PBH shall not be liable for any non-delivery of Media Product(s) or non-performance
      of the Services (even if caused by PBH’s negligence) unless notice in writing is given to PBH
      within 7 (seven) days of the date when the Media Product(s) would in the ordinary course of
      events have been received or the Services performed.
    5. Any liability of PBH for non-delivery of the Media Product(s) shall be limited to replacing
      the Media Product(s) within a reasonable time or issuing a credit note for the Price at PBH’s discretion.
  7. Media Products and Services
    1. The quantity, quality and description of the Media Product(s) and the Services shall,
      where required, be detailed in the Confirmation.
    2. PBH shall not be liable for any failure to provide or delay in providing the Media
      Product(s) and the Services to the extent that such delay arises out of or in connection
      with any act or omission of the Customer or its sub-contractors, agents, officers or
      employees which either directly or indirectly affects PBH’s ability to provide the Media Product(s)
      and the Services including any breach of the Customer of its obligations under the Contract.
      PBH reserves the right to invoice the Customer for any additional expenses incurred by PBH
      as a result of such failure or delay.
    3. During the course of supplying the Media Product(s) and performing the Services, PBH reserves
      the right to make any improvement, substitution or modification to the Job Description as it
      reasonably deems fit provided that such improvement, substitution or modification will not
      materially change the nature of the Media Product(s) and/or the performance of the Services.
    4. PBH reserves the right to refuse to provide the Media Product(s) and/or the Services where,
      in its reasonable opinion, the content of the Customer’s Materials and/or the Order and/or the
      Job Description are or are likely to be construed in PBH’s reasonable opinion as being illegal,
      obscene, threatening, defamatory, discriminatory, promoting illegal or unlawful activity or are
      otherwise actionable or in violation of any rules, regulations or laws to which the Customer’s
      Materials, Media Product(s) and/or the Services are subject.
  8. Risk and Property
    1. The Customer acknowledges that PBH shall not be responsible for any loss
      of Customer’s Materials supplied by the Customer and that the Customer must retain
      in its possession at least 1 (one) copy of the Customer’s Materials supplied to
      PBH pursuant to the Contract.
    2. PBH shall at its sole discretion on the request of the Customer retain and
      store copies of the Customer’s Materials and the Media Product(s) at its premises.
    3. PBH and the Customer acknowledge that PBH shall at all times hold the Customer’s
      Materials as the Customer’s fiduciary agent and bailee.
    4. Risk of damage to or loss of the Customer’s Materials shall not pass to PBH
      although PBH shall take reasonable care and precautions in order to ensure that
      the Customer’s Materials are:-

      1. stored in a safe and secure environment;
      2. insured against loss, theft, fire, damage or other kind of destruction
        howsoever caused whilst retained and stored on PBH’s premises to a maximum
        value of the cost of providing replacement Customer’s Materials; and
      3. at all times kept within the control of PBH.
    5. If requested PBH shall, in accordance with the written instructions of the Customer,
      return all the Customer’s Materials at the cost of the Customer to the Delivery
      Address and certify that all duplicates of the Customer’s Materials have been destroyed.
    6. Risk of damage to or loss of the Media Product(s) shall pass to the Customer upon
      delivery of the Media Product(s) to the Customer in accordance with the Contract.
    7. Notwithstanding delivery and the passing of risk in the Media Product(s) or any
      other terms of the Contract, the property in the Media Product(s) shall not pass to
      the Customer until PBH has received in cash or cleared funds payment in full of the
      Price of the Media Product(s) and all other Media Product(s) and/or Services agreed
      to be sold or supplied by PBH to the Customer for which payment is then due.
    8. Until such time as the property in the Media Product(s) passes to the Customer,
      the Customer shall hold the Media Product(s) as PBH’s fiduciary agent and bailee and
      shall keep the Media Product(s) separate from those of the Customer and third parties
      and properly stored, protected and insured and identified as PBH’s property.
    9. Until such time as the property in the Media Product(s) passes to the customer
      (and provided the Media Product(s) are still in existence and have not been resold)
      PBH shall be entitled at any time to require the Customer to deliver up the Media Product(s)
      to PBH and, if the Customer fails to do so forthwith upon demand, the Customer grants PBH
      a licence to enter upon any premises of the Customer or any third party where the Media
      Product(s) are stored to repossess the Media Product(s).
    10. The Customer shall not be entitled to pledge or in any way charge by way of security
      for any indebtedness any of the Media Product(s) which remain the property of PBH,
      but if the Customer does so, all monies owing by the Customer to PBH shall (without prejudice
      to any other right or remedy of PBH) forthwith become due and payable.
  9. Intellectual Property Rights
    1. PBH acknowledges that any and all of the Intellectual Property used or embodied
      in or in connection with the Customer’s Materials shall remain the sole property
      of the Customer or of such other party as may be identified therein or thereon
      (the “Owner”) and subject to a breach of the Customer’s warranties set out in Clause
      11.B PBH shall not during or at any time after the completion, expiry or termination
      of the Contract in any way question or dispute the ownership by the Customer or the
      Owner of any such Intellectual Property.
    2. The Customer hereby grants a non-exclusive and non-transferable license to PBH
      to Use the Intellectual Property subsisting in the Customer’s Materials in order
      to perform the Services and provide the Media Product(s).

    3. When PBH has received cash or cleared funds for payment of the Price by the Customer,
      PBH acknowledges that the Intellectual Property in and to the Media Product(s) and/or any
      Intellectual Property relating to them and all modifications and amendments thereto shall
      be the property of the Customer and shall remain the Customer’s property.
    4. Until payment of the Price, the Customer and/or its nominees shall be entitled to a
      revocable, non-exclusive, non-transferable license to Use the Intellectual Property created
      by PBH relating to the Media Product(s) supplied under the Contract.
    5. Subject only to the express terms of the Contract, PBH reserves the right to use any
      and all skills, expertise, knowledge and know-how gained and/or arising from supplying the
      Media Product(s) and/or performing the Services in the provision of similar media product(s)
      and/or services to other PBH clients and/or potential clients and the Customer shall place
      no restriction whatsoever on such right. The Customer permits PBH to promote and advertise
      itself through the use of examples of the Media Product(s) in promotional or other materials.
  10. Warranties and Liability
    1. Subject to Clauses 9.B and 9.C, the Customer acknowledges and accepts that
      PBH gives no warranties of any kind in relation to the Media Product(s) and/or
      the Services and that any warranties, conditions and other terms implied by
      statute or common law (except for the conditions implied by Section 12 of the
      Sale of Goods Act 1979 and/or Section 2 of the Supply of Goods and Services Act 1982,
      as amended) are, to the fullest extent permitted by law, excluded from the Contract.
    2. Subject to Clauses 9.E and 9.F and the limitations on PBH’s liability in Clause 10,
      PBH warrants and undertakes to the Customer that the Media Product(s) excluding hardware will:-

      1. be of satisfactory quality and fit for any particular purpose for which the Media Product(s)
        are being supplied if the Customer has made known such purpose to PBH in writing and PBH has
        confirmed in writing that it is reasonable for the Customer to use the Media Product(s) for such a purpose;
      2. for a period of 3 months from the Delivery Date, be free from material defects in design,
        material and workmanship;
      3. materially correspond with any relevant description in any Job Description agreed by PBH
        insofar as this is within PBH’s control; and
      4. comply with all statutory requirements and regulations relevant to the Media Product(s).
    3. Subject to Clause 9.E and 9.F and the limitations on PBH’s liability in Clause 10,
      PBH warrants and undertakes to the Customer that the Services will be performed by
      appropriately qualified and trained personnel, with due care and diligence and in
      accordance with good industry practice.
    4. If any Media Product(s) and/or Services are not supplied or performed in accordance
      with Clauses 9.B and 9.C, PBH shall, subject to Clauses 9.E and 9.F and at its election,
      either repair the Media Product(s) and/or supply replacement Media Product(s) as soon as reasonably practical.
    5. PBH shall not be liable for a breach of any of the warranties in Clauses 9.B and 9.C unless:-

      1. the Customer gives written notice of a defect to PBH within 14 (fourteen) days of the time
        when the Customer discovers or ought to have discovered the defect; and
      2. PBH is given a reasonable opportunity after receiving such notice to examine the Media
        Product(s) and the Customer (if asked to do so by PBH) returns such Media Product(s)
        to PBH’s place of business at the Customer’s cost for the examination to take place there.
    6. PBH shall not be liable for a breach of any of the warranties in Clauses 9.B
      and 9.iii if a defect arises as a result of:-

      1. any modifications of the Media Product(s) made by or, any act or omission on the
        part of the Customer or its sub- contractors, agents, officers or employees or any
        person other than a person acting on behalf of PBH;
      2. a failure by the Customer or its sub-contractors, agents, officers or employees
        to use the Media Product(s) in accordance with good industry practice;
      3. accident, transportation, neglect or misuse of the Customer or its sub-contractors,
        agents, officers or employees; or
      4. an event of force majeure, as defined in Clause 13.
    7. Where any defect in the Media Product(s) is due to the default of the Customer
      or its sub-contractors, agents, officers or employees under Clause 9.F, PBH may
      charge the Customer for the repair of the Media Product(s) in accordance with its
      standard scale of charges from time to time, including but not limited to the costs
      of repair, removal and transportation of the Media Product(s).
  11. Limitation of Liability
    1. Nothing in the Contract shall operate to exclude or limit PBH’s liability for:-

      1. death or personal injury caused by the negligence of PBH, its servants,
        agents, employees or sub-contractors; or
      2. any breach or contravention of the conditions implied by Section 12 of the Sale of Goods
        Act 1979 and Section 2 of the Supply of Goods and Services Act 1982, as amended; or
      3. fraudulent misrepresentation; or
      4. any breach of any undertaking as to title, quiet possession and freedom
        from encumbrance implied by law.

    2. Subject to Clause 10.A:-

      1. PBH’s total aggregate liability in contract, tort (including negligence
        or breach of statutory duty), misrepresentation or otherwise, arising in
        connection with the performance or contemplated performance of the Contract
        shall be limited to the Price; and
      2. PBH shall not be liable to the Customer for any special, indirect or consequential
        loss or damage for loss of profit, loss of business, loss of anticipated savings,
        depletion of goodwill or loss of management time which arise out of or in connection
        with the Contract.
    3. PBH’s maximum liability for physical damage to the Customer’s Materials resulting from PBH’s negligence
      shall be limited to the cost of providing replacement Customer’s Materials.
  12. Customer’s Warranties, Undertakings and Indemnities
    1. The Customer acknowledges that PBH does not operate or exercise final editorial control
      over, and accepts no responsibility for the content of the Customer’s Materials provided
      to PBH by the Customer and as incorporated into the Media Product(s).
    2. The Customer warrants that:-

      1. it has obtained and will obtain all necessary consents, approvals and licences for
        the Use of the Customer’s Materials by PBH to provide the Services and supply the
        Media Product(s) in accordance with the Job Specification; and
      2. the Use of the Customer’s Materials by PBH to provide the Services and supply the
        Media Product(s) in accordance with the Job Specification will not infringe any
        third party Intellectual Property.
    3. In the event of an allegation(s) of a breach of Clause 11.B, or if PBH reasonably suspects
      such a breach or infringement has occurred, PBH may, without giving notice to the Customer
      and without liability, suspend availability of the Media Product(s) and/or the Services
      pending clarification of such allegation(s) or suspicion.
    4. The parties shall notify each other as soon as is reasonably possible after becoming aware
      of any third party allegation(s) of a breach of Clause 11.B.
    5. The Customer shall indemnify PBH, and its officers, agents, employees or otherwise against
      any claims, proceedings, losses, liabilities, damages (including reasonable costs), charges
      and expenses of whatever nature arising out of or in connection with any claim or action made
      against PBH and its sub-contractors, officers, agents, employees or otherwise relating to a breach of Clause 11.B.
  13. Term and Termination
    1. Without prejudice to any other remedies available, either party shall be entitled to terminate the Contract with
      immediate effect by giving written notice of termination to the other if:

      1. the other commits a material breach of the Contract which, in the case of a breach capable of remedy, shall not have
        been remedied within fourteen (14) days of the receipt by the other of a notice identifying the breach and requiring its remedy;
        or
      2. the other party shall have a receiver or administrative receiver appointed over it or any part of its undertaking or assets
        or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide reconstruction) or if a court of competent
        jurisdiction shall make an order to that effect or if the other shall enter into any voluntary arrangement with its creditors or shall
        be subject to an administration order or shall threaten to cease or cease to carry on business.
    2. Without prejudice to any other remedies available, PBH may terminate the Contract with immediate effect if:-

      1. notwithstanding Clause 12.A(i) the Customer fails to pay any sums due by it to PBH within 10 days after the due date;
      2. the Customer infringes the Intellectual Property of PBH or any third party.
    3. Clauses 7, 10 and 14 shall survive termination of the Contract howsoever caused.
    4. Any termination of the Contract shall be without prejudice to any other rights or remedies either party may be
      entitled to hereunder or at law.
  14. Force Majeure
  15. Neither party shall be liable to the other for any delay in performing or any failure to perform any of its
    obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying
    (including, without limitation, any vis major, fire, flood, strike, lock-out or other form of industrial action).

  16. Confidentiality
    1. Each party shall keep confidential any and all Confidential Information. Each party shall not use the
      Confidential Information for any purpose other than to perform its obligations under the Contract. Each party shall ensure that
      its sub-contractors, agents, officers and employees comply with the provisions of this Clause 14.
    2. The obligations on the parties set out in Clause 14.A shall not apply to any information which:-

      1. is publicly available or becomes publicly available through no act or omission or the disclosing party; or
      2. is required to be disclosed by law or by order of a court of competent jurisdiction.
  17. Notices
  18. Any notice or other document to be given under the Contract shall be in writing and delivered by hand or sent
    by first class pre-paid letter, e-mail or facsimile transmission (to the address or e-mail or facsimile number of the other party set
    out in the Confirmation (or such other address or number as may have been notified) and any such notice or other document
    shall be deemed to have been served and/or delivered if hand-delivered, at the time of delivery, if by first class post, 48 hours
    after posting and if sent by e-mail or facsimile on transmission.

  19. Assignment and Sub-Licensing
    1. PBH shall be entitled to sub-contract, transfer or assign any or all of its rights and/or obligations under the Contract
      without restriction.
    2. The benefits and obligations conferred by the Contract upon the Customer are personal to the Customer and shall not
      be capable of being assigned, delegated, transferred, sub-contracted or otherwise disposed of and the Customer shall not
      purport to assign, transfer, sub-contract or dispose of the same.
  20. General
    1. If any provision in the Contract shall in whole or in part be held to any extent to be illegal or unenforceable
      under any enactment or rule of law that provision or part thereof shall to that extent be deemed not to form part of the Contract
      and the enforceability of the remainder of the Contract or any part thereof shall not be affected.

    2. The Contract contains the entire understanding of the parties with respect of the subject matter hereof and
      supersedes all prior agreements. Each party acknowledges that, in entering into the Contract, it has not relied on and shall
      have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or
      innocently) other than as expressly set out in the Contract.
    3. No variations to the Contract or these Terms will be effective unless agreed in writing and signed by a duly
      authorized representative of each party.
    4. For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision
      of the Contract, the Contract is not intended to, and does not, give any person who is not a party to it any right to enforce any of
      its provisions.

    5. The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to any Contract
      promptly through negotiation. If the matter is not resolved through negotiation the parties will attempt in good faith to resolve the
      dispute or claim through an alternative dispute resolution procedure as recommended to the parties by CEDR or another
      recognized mediation provider. The commencement of mediation will not prevent the parties commencing Court proceedings.

    6. No failure of either party to exercise, and no delay in exercising, any right or remedy provided under the
      Contract or by law shall operate as a waiver of such right or remedy.
    7. PBH and the Customer are each independent contractors with respect to each other and nothing in the
      Contract shall create any association, partnership or joint venture relationship between them.

    8. The Contract shall be governed by Scottish law and shall be subject to the exclusive jurisdiction of the Scottish
      Courts.


STANDARD TERMS AND CONDITIONS OF ENGINEERING (“Terms”)

The following Terms of Progressive Broadcast Hire Ltd (“PBH”) form the basis of the Contract between PBH and the Customer.
Where there is any inconsistency between the provisions hereof and the Confirmation (defined below), the provisions of the Confirmation will apply.

  1. Interpretation
    1. In these Terms, unless the context otherwise requires, the following expressions have the following meanings:-

      • “Confidential Information” the terms of the Contract and all information obtained
        by one party from the other pursuant to the Contract which is marked as confidential,
        or ought reasonably to be regarded as confidential.
      • “Engineering Services” any act or work carried out by PBH on Equipment at the
        Customer’s request or in pursuance of the Customer’s instructions.
      • “The Equipment” the Customer’s equipment and accessories delivered to PBH for Engineering Services.
      • “The Goods” are new or used goods, parts or accessories to be supplied by PBH including parts used
        in Engineering Services and services provided by PBH which are not Engineering Services.
      • “Confirmation” the email/letter sent by PBH to the Customer confirming the details of the Order
        (including any amendments to the Confirmation agreed by both parties).
      • “Contract” each individual offer by PBH accepted by the Customer in accordance with
        Clause 2 incorporating these Terms
      • “Customer” the person who, in the course of their business, has agreed to purchase Engineering Services from PBH.
      • “Job Description” the scope of the Services to be provided by PBH under the Contract.
      • “Order” the order placed by the Customer (by telephone or otherwise) for the purchase of the Engineering Services.
      • “PBH” Progressive Broadcast Hire Ltd (company number SC324433) whose registered office
        is at Unit 6 St Luke’s Business Estate, Glasgow G5 0TS.
      • “Price” the price charged by PBH to the Customer for the Media Product(s) and
        handling the Engineering Services as set out in the Confirmation.
      • “Delivery Address”the address for delivery set out in the Confirmation or
        such other address agreed in writing by the parties.
    2. The headings in these Terms are for ease of reference only and shall not
      affect the construction or interpretation of the Contract.
    3. Words importing the singular include the plural and vice versa and words
      importing any gender include every gender.
    4. Any reference to “person” shall include any partnership, firm,
      company, body corporate, corporation or organization.
    5. Any reference to “writing” or “in writing” includes emails and facsimiles.
  2. Application of Terms
    1. Subject to clauses 2.E and 17.C these Terms shall apply to all Orders and
      Contracts to the exclusion of all other terms and conditions (including any terms
      and conditions which the Customer supplies or purports to apply).
    2. The Confirmation shall constitute an offer by PBH to provide the Engineering Services.
      The Customer shall accept this offer by returning the signed Confirmation or by returning
      the completed Confirmation email to PBH.
      Where the Customer does not accept, reject or request an amendment to the Confirmation
      within 4 normal working hours of the Confirmation being sent to the Customer the Customer
      shall be deemed to have accepted PBH’s offer.
    3. Each Confirmation accepted by the Customer in accordance with this Clause 2 will
      create a separate Contract governed by these Terms.
    4. PBH reserves the right to amend these Terms from time to time and shall notify the Customer
      of such amendments. The Customer shall be required to accept the new Terms before an Order can
      be placed and a new Contract formed.
  3. The Contract
    1. All orders are accepted by PBH only under these Terms that may not be altered other
      than with the written agreement of PBH.
    2. Quotations are invitations to treat only
    3. Orders once accepted by PBH may not be suspended or cancelled without the prior consent
      in writing of PBH. The Customer will indemnify PBH against all losses including loss of
      profit damages costs and expenses PBH may incur as a result of PBH accepting that cancellation.
    4. Except when Goods are supplied on the express advice given in writing by PBH that they are
      suitable for any particular purpose, it shall not be a term of a Contract that Goods are sold
      as fit for any particular purpose and this is notwithstanding that PBH may have, or be deemed
      to have, knowledge of the purpose for which the Goods are required.
  4. Price and Payment
    1. PBH may invoice the Customer for the Price before, on or immediately following provision
      of the Engineering Services to the Customer. Time shall be of the essence in respect of the
      Customer’s payment.
    2. Unless otherwise stated in the Confirmation, the Customer shall pay the Price within
      30 days of PBH’s invoice.
    3. All sums due are exclusive of VAT or other applicable sales tax which shall be paid
      by the Customer at the appropriate rate.
    4. Where the Customer fails to make payment within 10 days from the due date then,
      without prejudice to any other right or remedy available to PBH, PBH shall be entitled
      to cancel the Contract and/or suspend any provision of the Engineering Services.
      PBH may also charge the Customer interest (both before and after any judgement is made)
      on the amount unpaid at the rate of 4% above HBSC’s base rate in force from time to time
      until full payment is made.
    5. The Customer shall make all payments due without any deduction whether by way of
      set-off, counterclaim, discount, abatement or otherwise.
  5. Engineering Services
    1. The quantity, quality and description of the Engineering Services
      and the Goods shall, where required, be detailed in the Confirmation.
    2. The Contract will be made when PBH commences Engineering Services
      after the Customer’s authorized representative has instructed PBH in
      writing to undertake the Engineering Services set out in PBH’s quotation.
    3. If the Customer does not accept a quotation PBH reserve the right
      to make a fault analysis and handling charge.
    4. Engineering Services shall be carried out with reasonable care and
      skill and so far as reasonably and economically possible in such a manner
      as to comply with the manufacturer’s technical specification where such
      information is available.
    5. We reserve the right not to effect repairs upon Equipment which in
      Our view has been improperly used or cannibalized.
    6. PBH shall not be liable for any failure to provide or delay in providing
      the Goods and the Engineering Services to the extent that such delay arises
      out of or in connection with any act or omission of the Customer or its
      sub-contractors, agents, officers or employees which either directly or
      indirectly affects PBH’s ability to provide the Goods and the Engineering
      Services including any breach of the Customer of its obligations under
      the Contract. PBH reserves the right to invoice the Customer for any additional
      expenses incurred by PBH as a result of such failure or delay.
    7. During the course of supplying the Goods and the Engineering Services,
      PBH reserves the right to make any improvement, substitution or modification
      to the Job Description as it reasonably deems fit provided that such improvement,
      substitution or modification will not materially change the nature of the Goods,
      the Equipment and/or the performance of the Engineering Services.
    8. PBH reserves the right to refuse to provide the Goods and/or the Engineering
      Services where, in its reasonable opinion, the content of the Customer’s Materials
      and/or the Order and/or the Job Description are or are likely to be construed in
      PBH’s reasonable opinion as being illegal, obscene, threatening, defamatory,
      discriminatory, promoting illegal or unlawful activity or are otherwise actionable
      or in violation of any rules, regulations or laws to which the Customer is subject.
  6. Risk and Property
    1. The Customer acknowledges that PBH shall not be responsible for
      any loss of Customer’s Equipment supplied by the Customer and that
      the Customer must retain in its possession at least 1 (one) copy of
      the Customer’s Equipment supplied to PBH pursuant to the Contract.
    2. PBH shall at its sole discretion on the request of the Customer
      retain and store the Customer’s Equipment at its premises.
    3. PBH and the Customer acknowledge that PBH shall at all times hold
      the Customer’s Equipment as the Customer’s fiduciary agent and bailee.
    4. Risk of damage to or loss of the Customer’s Equipment shall not pass
      to PBH although PBH shall take reasonable care and precautions in order
      to ensure that the Customer’s Equipment are:-

      1. stored in a safe and secure environment;
      2. insured against loss, theft, fire, damage or other kind of destruction
        howsoever caused whilst retained and stored on PBH’s premises to a maximum
        value of the cost of providing replacement Customer’s Equipment; and
      3. at all times kept within the control of PBH.
    5. If requested PBH shall, in accordance with the written instructions
      of the Customer, return all the Customer’s Equipment at the cost of the
      Customer to the Delivery Address.
    6. Risk of damage to or loss of the Equipment shall pass to the Customer
      upon delivery of the Equipment to the Customer in accordance with the Contract.
    7. Notwithstanding delivery and the passing of risk in the Equipment or any other
      terms of the Contract, the Goods in the Equipment shall not pass to the Customer
      until PBH has received in cash or cleared funds payment in full of the Price
      of the Goods and all other Engineering Services agreed to be sold or supplied by
      PBH to the Customer for which payment is then due.
    8. Until such time as the property in the Goods passes to the Customer, the Customer
      shall hold the Goods as PBH’s fiduciary agent and bailee and shall keep the Goods
      separate from those of the Customer and third parties and properly stored,
      protected and insured and identified as PBH’s property.
    9. Until such time as the property in the Goods passes to the customer (and provided
      the Equipment and Goods are still in existence and have not been resold) PBH shall
      be entitled at any time to require the Customer to deliver up the Equipment to PBH
      and, if the Customer fails to do so forthwith upon demand, the Customer grants PBH
      a licence to enter upon any premises of the Customer or any third party where the
      Goods and / or Equipment are stored to repossess the Goods.
    10. The Customer shall not be entitled to pledge or in any way charge by way of
      security for any indebtedness any of the Goods which remain the property of PBH,
      but if the Customer does so, all monies owing by the Customer to PBH shall (without
      prejudice to any other right or remedy of PBH) forthwith become due and payable.
  7. Goods
    1. A Contract for the supply of Goods shall not come into existence
      until PBH receive an order or other written instruction signed by the
      Customer’s authorized representative accepting our quotation and these Terms.
    2. Unless agreed by PBH in writing and endorsed on the consignment note Goods
      are not supplied on a sale or return or trial basis.
  8. Intellectual Property Rights
    1. Subject only to the express terms of the Contract, PBH reserves the right
      to use any and all skills, expertise, knowledge and know-how gained and/or
      arising from supplying the Goods and/or performing the Engineering Services
      in the provision of similar Equipment and/or services to other PBH clients
      and/or potential clients and the Customer shall place no restriction whatsoever
      on such right. The Customer permits PBH to promote and advertise itself through
      the use of examples of the Engineering Services in promotional or other materials.
  9. Warranties and Liability
    1. The liability of PBH under our warranty in relation to Goods
      shall be subject to the Goods having been used and maintained wholly
      in accordance with the manufacturer’s instructions and to their not
      having been repaired or altered other than by PBH.
    2. PBH will warrant all repairs to be free from defects in workmanship
      or materials for ninety (90) days (unless otherwise specified) from
      the date of Equipment delivery to the Customer or for the balance of
      any previous Warranty, whichever is the longer.
    3. Missing parts, physical damage, modification, attempted repairs
      or any misuse (unless attributable to us), shall void the original
      warranty or ninety (90) day (unless another period is specified)
      repair warranty and any subsequent repair will be quoted for when the
      Item has been received from the Customer.
    4. PBH warrant that replacement components and sub-assemblies fitted to
      repaired Equipment shall have, in all material respects, at least equivalent
      functionality, geometry and compatibility to the replaced components or sub-assemblies.
    5. Subject to Clause 9.G and 9.H and the limitations on PBH’s liability in Clause 10,
      PBH warrants and undertakes to the Customer that the Services will be performed by
      appropriately qualified and trained personnel, with due care and diligence and
      in accordance with good industry practice.
    6. If any Goods and/or Engineering Services are not supplied or performed in accordance with
      Clauses 9.D and 9.E, PBH shall, subject to Clauses 9.G and 9.H and at its election,
      either repair the Goods and/or supply replacement Goods as soon as reasonably practical.
    7. PBH shall not be liable for a breach of any of the warranties in Clauses 9.B and 9.C unless:-
      1. the Customer gives written notice of a defect to PBH within 14 (fourteen) days of the
        time when the Customer discovers or ought to have discovered the defect; and
      2. PBH is given a reasonable opportunity after receiving such notice to examine the Equipment
        and / or Goods and the Customer (if asked to do so by PBH) returns such Equipment and / or Goods
        to PBH’s place of business at the Customer’s cost for the examination to take place there.
    8. PBH shall not be liable for a breach of any of the warranties in Clauses 9.B and 9.C
      if a defect arises as a result of:-

      1. any modifications of the Goods and / or Equipment made by or, any act or omission
        on the part of the Customer or its sub- contractors, agents, officers or employees or
        any person other than a person acting on behalf of PBH;
      2. a failure by the Customer or its sub-contractors, agents, officers or employees
        to use the Goods and / or Equipment in accordance with good industry practice;
      3. accident, transportation, neglect or misuse of the Customer or its sub-contractors,
        agents, officers or employees; or
      4. an event of force majeure, as defined in Clause 13.
    9. Where any defect in the Goods and / or Equipment is due to the default of the Customer
      or its sub-contractors, agents, officers or employees under Clause 9.H, PBH may charge
      the Customer for the repair of the Goods and / or Equipment in accordance with its standard
      scale of charges from time to time, including but not limited to the costs of repair,
      removal and transportation of the Goods and / or Equipment.
  10. Limitation of Liability
    1. Nothing in the Contract shall operate to exclude or limit PBH’s liability for:-
      1. death or personal injury caused by the negligence of PBH, its servants,
        agents, employees or sub-contractors; or
      2. any breach or contravention of the conditions implied by Section 12 of
        the Sale of Goods Act 1979 and Section 2 of the Supply of Goods and Services
        Act 1982, as amended; or
      3. fraudulent misrepresentation; or
      4. any breach of any undertaking as to title, quiet possession and freedom
        from encumbrance implied by law.
    2. Subject to Clause 10.A:-
      1. PBH’s total aggregate liability in contract, tort (including negligence or
        breach of statutory duty), misrepresentation or otherwise, arising in connection
        with the performance or contemplated performance of the Contract shall be limited
        to the Price; and
      2. PBH shall not be liable to the Customer for any special, indirect or
        consequential loss or damage for loss of profit, loss of business, loss of
        anticipated savings, depletion of goodwill or loss of management time which
        arise out of or in connection with the Contract.
    3. PBH’s maximum liability for physical damage to the Customer’s Equipment resulting
      from PBH’s negligence shall be limited to the cost of providing replacement Customer’s Equipment.
  11. Customer’s Warranties, Undertakings and Indemnities
  12. Except when payment for Goods to be supplied has been made or secured in
    advance of their delivery to or to the order of the Customer PBH shall be
    entitled to withdraw from a Contract if and when the Customer suffers distress
    or execution to be levied against his or its goods or effects, makes an
    arrangement or composition with creditors, enters into liquidation (otherwise
    than for the purpose of amalgamation or reconstruction) has a receiver appointed
    for the whole or any part of its undertaking, or if a receiving order in
    bankruptcy is made against him. When PBH elect to withdraw from a Contract
    in any such circumstances, PBH shall thenceforth cease to have any liability
    to the Customer thereunder but shall remain entitled to claim from the Customer
    a due proportion of the Contract price in respect of such part of the Contract
    as PBH shall have performed.

  13. Term and Termination
    1. Without prejudice to any other remedies available, either party shall be
      entitled to terminate the Contract with immediate effect by giving written
      notice of termination to the other if the other commits a material breach
      of the Contract which, in the case of a breach capable of remedy, shall not
      have been remedied within fourteen (14) days of the receipt by the other of
      a notice identifying the breach and requiring its remedy; or
    2. Without prejudice to any other remedies available, PBH may terminate the
      Contract with immediate effect if:-

      1. notwithstanding Clause 12.A(i) the Customer fails to pay any sums
        due by it to PBH within 10 days after the due date;
      2. the Customer infringes the Intellectual Property of PBH or any third party.
    3. Clauses 6, 10 and 14 shall survive termination of the Contract howsoever caused.
    4. Any termination of the Contract shall be without prejudice to any other rights or
      remedies either party may be entitled to hereunder or at law.
  14. Force Majeure
  15. Neither party shall be liable to the other for any delay in performing or any failure to
    perform any of its obligations hereunder if such delay is caused by circumstances
    beyond the reasonable control of the party so delaying (including, without limitation,
    any vis major, fire, flood, strike, lock-out or other form of industrial action).

  16. Confidentiality
    1. Each party shall keep confidential any and all Confidential Information.
      Each party shall not use the Confidential Information for any purpose other
      than to perform its obligations under the Contract. Each party shall ensure
      that its sub-contractors, agents, officers and employees comply with the
      provisions of this Clause 14.
    2. The obligations on the parties set out in Clause 14.A shall not apply to
      any information which:-

      1. is publicly available or becomes publicly available through no act
        or omission or the disclosing party; or
      2. is required to be disclosed by law or by order of a court of competent jurisdiction.
  17. Notices
  18. Any notice or other document to be given under the Contract shall be in writing and delivered
    by hand or sent by first class pre-paid letter, e-mail or facsimile transmission (to the address
    or e-mail or facsimile number of the other party set out in the Confirmation (or such other
    address or number as may have been notified) and any such notice or other document shall be
    deemed to have been served and/or delivered if hand-delivered, at the time of delivery, if by
    first class post, 48 hours after posting and if sent by e-mail or facsimile on transmission.

  19. Assignment and Sub-Licensing
    1. PBH shall be entitled to sub-contract, transfer or assign any or all of its rights
      and/or obligations under the Contract without restriction.
    2. The benefits and obligations conferred by the Contract upon the Customer are personal
      to the Customer and shall not be capable of being assigned, delegated, transferred,
      sub-contracted or otherwise disposed of and the Customer shall not purport to assign,
      transfer, sub-contract or dispose of the same.
  20. General
    1. If any provision in the Contract shall in whole or in part be held to any extent to
      be illegal or unenforceable under any enactment or rule of law that provision or part
      thereof shall to that extent be deemed not to form part of the Contract and the enforceability
      of the remainder of the Contract or any part thereof shall not be affected.
    2. The Contract contains the entire understanding of the parties with respect of the subject
      matter hereof and supersedes all prior agreements. Each party acknowledges that, in entering
      into the Contract, it has not relied on and shall have no right or remedy in respect of, any
      statement, representation, assurance or warranty (whether made negligently or innocently)
      other than as expressly set out in the Contract.
    3. No variations to the Contract or these Terms will be effective unless agreed in writing and
      signed by a duly authorized representative of each party.
    4. For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding
      any other provision of the Contract, the Contract is not intended to, and does not, give any
      person who is not a party to it any right to enforce any of its provisions.
    5. The parties will attempt in good faith to resolve any dispute or claim arising out of or
      relating to any Contract promptly through negotiation. If the matter is not resolved through
      negotiation the parties will attempt in good faith to resolve the dispute or claim through
      an alternative dispute resolution procedure as recommended to the parties by CEDR or another
      recognized mediation provider. The commencement of mediation will not prevent the parties
      commencing Court proceedings.
    6. No failure of either party to exercise, and no delay in exercising, any right or remedy
      provided under the Contract or by law shall operate as a waiver of such right or remedy.
    7. PBH and the Customer are each independent contractors with respect to each other and
      nothing in the Contract shall create any association, partnership or joint venture relationship
      between them.
    8. The Contract shall be governed by Scottish law and shall be subject to the exclusive
      jurisdiction of the Scottish Courts.

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