“LION MOUNTAIN STUDIOS” means Lion Mountain Media (Pty) Ltd a company incorporated in the Republic of South Africa under company registration number 2012/224319/07, and having its registered business address at: 144 Western Service Road, Woodmead, Johannesburg, 2191;
“Customer” means the hirer of the Equipment, namely the person or company whose details are set out in the Quotation or Rental Collection Note;
“Contract/s” means these Conditions of Hire together with where applicable, the Quotation, the Rental Collection/Delivery Note, the Credit Application, the Order and all schedules and appendices thereto;
“Equipment” means all equipment hired to the Customer by LION MOUNTAIN STUDIOS under these Conditions of Hire as detailed in the Quotation
“Hire Period” means the period in respect of which the Equipment is hired by LION MOUNTAIN STUDIOS to the Customer as detailed in the Quotation
“Order” means the written acceptance of a Quote by the Customer
“Quotation” means the quotation to which these terms and conditions are attached, and
“Commencement Date” means the start date as set out in the Quotation
HIRE OF EQUIPMENT
The Quotation is an offer by LION MOUNTAIN STUDIOS to hire the Equipment as detailed in the Quotation and subject to these Conditions of Hire.
Acceptance of the offer will be the signature of the Quotation and the return thereof by no later than the quote expiry date. Alternatively the Customer shall be deemed to have accepted the Quotation subject to the Conditions of Hire by:
- the written confirmation of the Quotation, or
- the payment thereof, or
- collecting the Equipment from Visual Impact.
These Conditions of Hire are deemed to be incorporated into all Contracts for the hire of Equipment to the Customer and supersede all terms and conditions previously issued by LION MOUNTAIN STUDIOS.
The Contract constitutes the whole of the agreement between LION MOUNTAIN STUDIOS and the Customer and should not be varied in any way unless done so in writing and signed by both parties.
Notwithstanding anything herein contained, LION MOUNTAIN STUDIOS shall remain the sole and absolute owner of the Equipment. Without prejudice to any provision in these Conditions of Hire, the Customer shall at all times use its best endeavors to assist LION MOUNTAIN STUDIOS to resume possession of the Equipment whether during or after the Hire Period if the Customer has lost or relinquished possession of the Equipment or at the expiration of the Hire Period if it is not then returned to LION MOUNTAIN STUDIOS, and hereby authorizes LION MOUNTAIN STUDIOS to enter upon the Customer’s premises during normal working hours for those purposes.
The cost of the hiring of the Equipment shall be the cost as set out in the Quotation and shall be subject to VAT at the prevailing rate and LION MOUNTAIN STUDIOS shall have the right to adjust its price list for any increase in any costs of any kind arising for any reason after the commencement of the Hire Period.
Payment of all invoices are due by the Customer prior to collection of the Equipment unless credit facilities have been granted to the Customer in which case payment will be due without set off within 30 days from date of invoice and the Customer shall pay interest on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgment) at the maximum prevailing rate in terms of the National Credit Act, 2005 on a daily basis or the legal rate of interest, whichever is higher and reimburse to LION MOUNTAIN STUDIOS all costs and expenses (including legal costs incurred on an attorney and client basis) incurred in the collection of any overdue amount.
EXTENSION OF HIRE PERIOD
Any extension to the Hire Period or addition to the Equipment hired by the Customer shall be agreed to in writing by LION MOUNTAIN STUDIOS and shall be invoiced separately and shall be subject to the then current price list of LION MOUNTAIN STUDIOS.
Without prejudice to any right or remedy of LION MOUNTAIN STUDIOS, this Contract may be terminated by LION MOUNTAIN STUDIOS forthwith by notice in writing to the Customer:
- upon breach of the terms and conditions of this Contract by the Customer, in which event LION MOUNTAIN STUDIOS may demand the immediate return of the Equipment, together with compensation for any damages or loss suffered as a result of such breach.
- if the Customer enters into liquidation (other than for the purposes of bona fide amalgamation or reconstruction) whether voluntary or otherwise or a receiver, administrative receiver, administrator or manager is appointed over all or part of its assets or enters into a voluntary arrangement with its creditors or suffers any insolvency event or suffers any process analogous to the above under foreign laws; or
- if the Customer comes under the control of any third party or parties other than that by which it is controlled at the date hereof or other than by an affiliate of it for the purposes of a bona fide reorganization. For the purposes of this paragraph, control shall mean either the ownership of fifty percent (50%) or more of the ordinary share capital of the company carrying the right to vote at general meetings of either party or the power to nominate a majority of the board of directors of either party.
USE OF EQUIPMENT
The Customer undertakes to:
- use and maintain the Equipment at all times strictly in accordance with the manufacturer’s instructions and all user manuals, pamphlets and booklets provided by LION MOUNTAIN STUDIOS to the Customer and to comply with all safety instructions and regulations relating thereto;.
- only allow persons with appropriate qualifications and experience to use the Equipment,
- ensure that only qualified underwater camera operators make use of the underwater camera’s and housing;
- not use the Equipment on any hazardous assignment or in any high-risk areas without the prior written consent of LION MOUNTAIN STUDIOS;
- take all reasonable precautions to avoid loss or damage to the equipment;
- not remove the Equipment from the territory of South Africa.
DELIVERY, COLLECTION AND RETURN OF THE EQUIPMENT
Unless otherwise agreed to by LION MOUNTAIN STUDIOS in writing, the Customer shall collect the Equipment from LION MOUNTAIN STUDIOS’s premises;
All vehicles brought onto LION MOUNTAIN STUDIOS premises will be at the vehicle owner’s risk. LION MOUNTAIN STUDIOS accepts no liability whatsoever for loss or damage to vehicles or personal property.
The person authorized to collect the Equipment on behalf of the Customer shall be deemed to have authority to bind the Customer in signing any agreement with LION MOUNTAIN STUDIOS on behalf of the Customer;
Where the parties have agreed in writing that LION MOUNTAIN STUDIOS shall deliver the Equipment to the Customer and LION MOUNTAIN STUDIOS is unable to deliver or collect such Equipment due to the fault or negligence of the Customer, the Customer shall be obliged to pay all delivery and/or collection charges at LION MOUNTAIN STUDIOS’s standard transport rates as applicable at the date of such attempted delivery or collection.
Delivery or collection of the Equipment, as the case may be, shall be deemed to take place at the time LION MOUNTAIN STUDIOS makes the Equipment available to the Customer, any duly authorised agent of the Customer or any carrier deemed to be the Customer’s duly authorised agent at LION MOUNTAIN STUDIOS’s premises or other delivery point agreed to in writing by the parties and all risk in and to the Equipment shall pass upon the Equipment being handed over to the Customer at such delivery or collection point.
LION MOUNTAIN STUDIOS shall not be liable for any penalty, loss, injury, damage or expense arising from the delay or failure to timeously deliver the Equipment or the delay or failure to make the Equipment timeously available to the Customer for collection.
If the Customer fails to collect or take delivery of the Equipment or any part thereof on the Commencement Date or fails to provide any instructions or authorisations required to enable the Equipment to be collected by or delivered to the Customer, as the case be, on the Commencement Date, LION MOUNTAIN STUDIOS shall be entitled upon written notice to the Customer to terminate the Contract forthwith and claim from the Customer all damages and loss suffered as a result thereof.
The Customer acknowledges that on signature of the Rental Collection Note, whether signed by the Customer, an employee, an agent or representative of the Customer, he has inspected and tested the Equipment and he is satisfied with its condition, quality, safety, suitability and correct functioning (including the film testing of all cameras and underwater housing) for his purpose and agrees no warranty, condition, description or representation on LION MOUNTAIN STUDIOS’s part is given other than as may be contained in a written document signed by LION MOUNTAIN STUDIOS and the Customer’s obligation to pay hire prices and otherwise comply with these Conditions of Hire shall continue notwithstanding any subsequent defect or breakdown of the Equipment.
Unless otherwise agreed in writing by the parties, the Customer shall be responsible for the return of the Equipment to LION MOUNTAIN STUDIOS’s premises upon expiration of the Hire Period or termination of the Contract. All costs incurred in or as a result of the return of the Equipment shall be borne solely by the Customer.
In the event that the Customer returns Equipment after hours and hands the Equipment to security personnel then the Equipment will only be accepted on the basis that the sole risk of loss or damage to the Equipment will remain vested in the Customer until such time as LION MOUNTAIN STUDIOS has recorded the return of the Equipment.
Any return note for the Equipment issued by LION MOUNTAIN STUDIOS at or after the end of the Hire Period shall not be evidence of the condition of the Equipment described in it.
On the return of the Equipment by the Customer, LION MOUNTAIN STUDIOS’s engineers (“the Engineers”) shall conduct a thorough inspection of the Equipment to ensure that the Equipment has been returned in the same condition as received by the Customer at the Commencement Date.
The Engineers’ report shall be forwarded to the Customer upon completion thereof and shall detail any loss or damage caused to the Equipment during the Hire Period. Such report shall constitute prima facie evidence of any loss or damage caused by the Customer to the Equipment during the Hire Period. The liquidated amount of the loss or damage to the Equipment shall be paid on demand by the Customer to LION MOUNTAIN STUDIOS, which amount shall be in accordance with LION MOUNTAIN STUDIOS’s then current replacement list price of the Equipment.
On the return of the Equipment, all data on the memory devices, including but not limited to hard drives, discs or tapes shall be deleted by LION MOUNTAIN STUDIOS, unless the Customer has specifically instructed VISUAL IMPACT otherwise in writing prior to the return of the Equipment.
The Customer shall pay delivery and collection charges at LION MOUNTAIN STUDIOS’s standard transport rates from time to time to LION MOUNTAIN STUDIOS on demand as an extra cost.
Unless otherwise agreed by LION MOUNTAIN STUDIOS, the Customer shall contribute the rate of 10% of the total cost of hire to LION MOUNTAIN STUDIOS for the cost of insurance, indemnifying LION MOUNTAIN STUDIOS and the Customer against physical loss of or damage to the Equipment during the hiring, on terms which are available from LION MOUNTAIN STUDIOS upon request. Those terms will exclude liability of the insurers for the stipulated excess of loss arising from each and every identifiable loss. The Customer will be liable to pay LION MOUNTAIN STUDIOS for the full excess amount on demand, which excess will be a minimum of R 5,000.00. The excess will be calculated as 20% of the claim for each and every loss due to theft or accidental damage and 10% of the claim in respect of every other loss.
Such indemnifying of the Customer is subject to the terms, exclusions, and conditions of the policy of such insurance and to the Customer complying with all the terms and conditions of this Contract. The exclusions include the insurer not being liable for:
Loss of or damage to Equipment resulting from or caused by:
- Theft from unattended vehicles;
- Its undergoing a process of cleaning, repair, dyeing, bleaching, alteration or restoration;
- Inherent vice, latent defect, vermin, insects, shrinkage, evaporation, loss of weight, rust contamination, mildew, or leakage of contents, unless caused by a peril not otherwise excluded;
- The dishonesty of any principal, partner, director or employee of the insured whether acting alone or in collusion with others;
- Detention, confiscation or requisition by customs or other officials or authorities, shortage of inventory or any unexplained loss or mysterious disappearance.
Wear and tear or gradual deterioration (including the gradual action of light or climatic or atmospheric conditions) unless following an accident or misfortune not otherwise excluded;
Mechanical, electronic or electrical breakdown, failure, breakage or derangement;
- Loss of or damage to goods consigned under a bill of lading;
- Aerial and underwater photography;
The Customer will be liable to pay LION MOUNTAIN STUDIOS the full replacement cost of the Equipment in the event of the insurer repudiating the claim, which amount will be in accordance with LION MOUNTAIN STUDIOS’s then current replacement list price of the Equipment.
Should the Quotation not specify an amount for the Customer’s contribution to the cost of insurance, the Customer shall be solely responsible for insuring the Equipment against any loss or damage of the Equipment during the Hire Period, for any reason whatsoever.
The Customer agrees:
- not to do, suffer or admit any act, matter or thing which may prejudice any policy of insurance effected by LION MOUNTAIN STUDIOS for the benefit of LION MOUNTAIN STUDIOS and the Customer;
- to immediately notify LION MOUNTAIN STUDIOS and the Police where necessary and take any practicable steps towards discovery and recovery in the event of theft and, as soon as practicable, provide to LION MOUNTAIN STUDIOS a full written report of the circumstances of any loss or damage with any particulars or evidence as is reasonably required by the LION MOUNTAIN STUDIOS.
No underwater equipment will be insured by LION MOUNTAIN STUDIOS and the Customer must take out appropriate insurance for all underwater equipment with a reputable insurance company and proof of insurance must be delivered to LION MOUNTAIN STUDIOS before the hire commences. LION MOUNTAIN STUDIOS’s interest in the equipment must be noted on all insurance documents. The Customer must inform the insurer of the potential hazardous conditions associated with the use of the underwater equipment including exposure to salt water. The insurance policy must include an extension to include hire charges incurred on lost or damaged underwater equipment whilst it is being replaced or repaired.