SONY/PPC MASTER VEHICLE TERMS AND CONDITIONS (CLEAN V )

Transcription

1 These VEHICLE RENTAL TERMS AND CONDITIONS ( Terms and Conditions ) govern the attached Rental Agreement, between the parties and applicable to Company s purchase order number ( P.O. ). As used herein, Paramount and Company shall have the same meanings ascribed to them in the Agreement to which these Terms and Conditions are attached. Company shall include all employees, representatives, contractors, performers, crew and agents of the Company. As used herein, this Agreement refers collectively to the Rental Agreement and these Terms and Conditions. To the extent of any conflict between this Agreement and any terms and conditions of the applicable P.O., these Terms and Conditions shall control. Pick-up and/or use of vehicle(s) constitutes Company s acceptance of these Terms and Conditions (which supersede any conflicting terms and conditions of the applicable P.O.) and this Agreement. 1. Vehicle(s): Paramount agrees to lease to Company and Company agrees to lease from Paramount certain vehicle(s) pursuant to the Agreement to which these Terms and Conditions are attached (via approved purchase orders signed by an authorized representative of Company). 2. Acceptance of the Vehicle By Company: Acceptance of the vehicle(s) by Company ( Acceptance ) shall occur at the time the vehicle(s) are inspected and removed by Company s representative(s) from Paramount's place of business. 3. Term: The Term of this Agreement ( Term ) shall commence on and remain in effect until the applicable dates set forth in the Agreement unless earlier terminated or extended pursuant hereto. The Term may be extended upon the mutual written agreement of Paramount and Company. 4. Fees and Charges: In consideration of Paramount s rental of the vehicle(s) to Company, Company shall pay to Paramount the rental fees and charges as specified in the Agreement. Rental fees and charges for the vehicle(s) shall be due and payable for all periods from start date through the date of termination and satisfactory return of the vehicle(s) to Paramount, including written acknowledgement of such return by Paramount s Transportation Dispatcher ( Return ). Any vehicle(s) rented from Paramount on a specific P.O. number shall remain charged to the original P.O. number unless and until Company notifies Paramount in writing of any changes. Any changes shall be subject to Company s being paid in full under prior P.O. numbers and accounts for the vehicle(s) and not otherwise in breach hereof and shall be subject to Paramount s approval. 5. Care, Maintenance and Repair of Vehicles: Commencing upon pick up of the vehicle(s) by Company, and continuing until Return, Company shall be responsible for and hereby assumes all liability related to the possession, use, operation, condition, storage, transportation and/or other acts or omissions related to the vehicle(s), except to the limited extent such liability is caused by the negligence or willful misconduct of Paramount. Company shall, at its own expense, maintain the vehicle(s) in the same good condition, repair and operating order as at the commencement of the Terms of the Agreement (ordinary wear and tear excepted) and in accordance with the vehicle manufacturer's specifications, throughout the Term until Return. Company is responsible for all repairs to the vehicle(s) that are not the result of ordinary wear and tear. These repairs include, but are not limited to, those necessary to repair or replace (a) matching tires, (b) electrical and mechanical defects and malfunctions, (c) glass, paint, body, trim, grill work that is broken or damaged, (d) interior areas (including rips, tears and burns). Repairs must be made with original equipment manufacturer parts. Company s use and/or repair of the vehicle(s) must not invalidate any warranty. All repairs shall be completed to the satisfaction of Paramount, and/or Paramount shall be entitled to make such repairs at Company s sole and exclusive expense. Paramount shall invoice Company for any such repairs (including vehicle down-time and loss of use). All installations, replacements and substitutions of parts or accessories by Company shall be subject to Paramount s prior approval and shall constitute accessions and shall immediately become part of the vehicle(s) and shall be owned by Paramount. Company shall notify Paramount prior to installing, replacing or 1

2 substituting any parts or accessories. In the event Company remains in possession of the vehicle(s) for a period of thirty (30) days or more, Company shall service or cause the vehicle(s) to be serviced in accordance with all state and federally mandated inspections and compliance requirements and manufacturer specifications. Such compliance shall include, but not be limited to, maintaining a properly completed DOT fleet vehicle inspection form in the vehicle(s) at all times and maintaining and replacing appropriate fluid levels. Company s failure to comply herewith shall constitute a material breach of this Agreement giving rise to Paramount s right to exercise all remedies available, including but not limited to immediate termination of the Agreement. Company shall not remove, alter, disguise or cover up any ownership identification, VIN numbers, license plates, numbering, lettering, insignia or other markings of any kind on or in the vehicle(s). 6. Damage to Vehicle; Loss: In the event of any collision, accident, breakdown, loss, theft or other incident involving any of the vehicle(s), Company shall immediately report the same to Paramount and follow Paramount s instructions with respect thereto. In any event, Company shall promptly provide Paramount with a written report of any such incident no matter how slight the damage or incident, giving names, license numbers, phone numbers and addresses of all parties and witnesses involved and licenses of all vehicles involved. At Paramount s direction, Company shall promptly return all damaged vehicle(s) to the location designated by Paramount for inspection and/or attempted repair and Company agrees not to attempt to repair such damaged vehicle(s). Company (upon written substantiation) shall reimburse Paramount for any and all reasonable costs and expenses (including applicable rental charges while repairs are being undertaken and/or rental charges for the period of time until damaged or stolen vehicle(s) is/are replaced) for loss, theft or damage to vehicle(s) during the Term prior to Return. Company shall be fully responsible for vehicle(s) that is/are lost, stolen or damaged, including damaged beyond repair, in each case at then current replacement cost. 7. Citations: Company is solely responsible for any and all parking and moving violation citations issued to the vehicle(s) during the Term prior to Return, including without limitation tolls. Any unpaid citations will incur a service fee of $50 per citation in addition to the actual cost of the citation. At no time shall Company allow any vehicle(s) to be impounded or encumbered by any federal, state, county, municipal or other authority. If Paramount is required to retrieve vehicle(s) from any such impound or remove any such encumbrance, there will be a service fee of $250 per vehicle plus any and all costs associated with such retrieval or removal, all of which shall be borne exclusively by Company. 8. Ownership: This Agreement constitutes a rental or bailment of vehicle(s) and not a sale or creation of any form of security interest. Company shall not have, or at any time acquire, any right, title or interest in the vehicle(s) except the limited right to possess and use such vehicle(s) as provided for herein during the Term. Paramount, or its designee, shall at all times be the owner of the vehicle(s). 9. Inspection: Company shall inspect the vehicle(s) prior to removing the vehicle(s) from Paramount's place of business. Unless Company gives notice to Paramount of any defects in or damage to the vehicle(s) prior to the removal thereof, Company agrees that it shall be conclusively presumed, as between Paramount and Company, Company has fully inspected the vehicle(s) and acknowledged the vehicle(s) is/are in good working condition and repair, and that Company is satisfied with and has accepted the vehicle(s) in such good condition and repair. 10. Use of Vehicles: Company shall use the vehicle(s) solely for the purposes for which they were designed and in a professional, careful and prudent manner. Company shall have absolute control, supervision and responsibility over any and all operators or users of the vehicle(s) during the Term of this Agreement prior to Return and shall ensure that all operators and users are appropriately licensed, insured, experienced and trained in operation and use of the vehicle(s) and with appropriate driving records, in accordance with 2

3 customary industry use and safety standards and applicable laws. No driver shall have been the subject of charges for driving under the influence of alcohol, drugs or controlled substances. Company shall be solely responsible for all actions and omissions of anyone operating, servicing, driving, moving, loading, unloading or otherwise using any of the vehicle(s) during the Term and prior to Return. No smoking is permitted in any vehicle. Smoking in vehicles will result in an automatic additional fee of not less than $150 per vehicle, in addition to any damages caused to the vehicle such as interior burns. Consumption of alcoholic beverages or illegal drugs by anyone operating or working on the vehicle(s) is strictly prohibited. 11. Risk of Loss: The vehicle(s) rented hereunder shall be used at Company's sole risk and Company assumes all responsibility and liability for the vehicle(s) during the Term and prior to Return (ordinary wear and tear commensurate with industry custom for the applicable rental period excepted). Except to the limited extent risk of loss or damage is caused by the negligence or willful misconduct of Paramount, Paramount shall be relieved from the risk of loss or damage to the vehicle(s) upon Acceptance of the vehicle(s) by the Company or check-out of the vehicle(s) by Company s representative, whichever occurs first, continuing through acceptable Return to Paramount. 12. Independent Contractor; Personnel: Company shall undertake all obligations under this Agreement as an independent contractor. None of Company, its officers, agents, contractors, delegates, representatives or employees (collectively with Company, Company Parties ) shall hold itself/himself/herself/themselves, out at any time as agents, servants, workers, representatives or employees of Paramount or any Paramount Parties for any purpose whatsoever. Company and/or Company Parties shall not bind or attempt to bind Paramount or any Paramount Parties to any obligation for any purposes. Company and Company s payroll services company shall be solely responsible for hiring, supervising, directing and paying all of Company Parties and for the payment and withholding of all payroll and other taxes imposed upon or determined by applicable wages and salaries and for complying with all applicable workers and unemployment compensation laws, occupational disease and temporary disability laws. 13. Compliance with Laws: Company represents and warrants that Company (through its representatives, drivers, agents and employees) shall use the vehicle(s) in a professional, careful and proper manner and shall not permit the vehicle(s) to be used or operated in violation of any federal, state or local laws, codes, statutes, ordinances, rules, regulations or directives applicable to the possession, use or maintenance of the vehicle(s) (including cell phone laws), nor in a manner inconsistent with customary industry use and/or safety standards. Without limiting the foregoing, Company is solely responsible for obtaining a Federal Motor Carrier Identification (USDOT) Number. Pursuant to FMCSR , Company shall placard vehicle(s) which shall include Operated by: Company s name, city and state of origin and USDOT Number. Company shall bear the cost of removing any such sign, marking or equipment at the termination of the lease and of repairing any damage caused by such sign, marking, equipment or removal. The vehicle(s) is/are licensed to operate only in the state of registration listed. Operation outside of the state may or may not require fuel and trip permits. These permits are to be obtained solely by Company. Paramount makes no representation whatsoever that the vehicle(s) is/are part of the International Fuel Tax Agreement (IFTA). Company shall be responsible for any and all fines or penalties incurred by operating the vehicle(s) without proper permits. Company agrees that, where necessary, the vehicle(s) will stop at permanent and temporary weigh stations and inspection points as is required by state and federal laws. Failure to do so may result in fines and penalties for which Company will be solely responsible. Company is responsible for verifying that those drivers assigned to the vehicle(s) or anyone who is permitted to operate the vehicle(s) in any way be properly trained and licensed under state and federal laws. No drivers under the age of 21 may operate the vehicle(s) at any time. 3

4 14. Insurance: Company (or Company s payroll services company with respect to item (a) of this Paragraph 14) shall prior to the commencement of the Term of this Agreement, obtain and maintain throughout the Term, at its own expense, the insurance policy coverages specified below to protect it and Paramount and shall provide Paramount with Certificates of Insurance for approval prior to initial Vehicle load out (A) Statutory Workers' Compensation and Employer's Liability Insurance in accordance with the laws of the state of California or any other the applicable jurisdiction. Employer s Liability limits shall not be less than One Million Dollars ($1,000,000.00). Coverage shall apply to all personnel employed either directly or by way of contract from any payroll service provider utilized; (B) Commercial General and Excess/Umbrella Liability Insurance on an occurrence basis with limits not less than Five Million Dollars ($5,000,000.00) per occurrence, which shall include coverage for, but not limited to, bodily injury, personal injury, death, broad-form property damage, contractual, products/completed operations premises/operations, fire, legal liability and independent contractor coverage. Without limiting the foregoing, such insurance shall include the contractual obligations assumed under this Agreement as well as personal injury, including but not limited to, libel, slander and invasion of privacy; (C) Business Automobile and Excess/Umbrella Liability Insurance with minimum combined Single Limit Liability for bodily injury, personal injury, death and property damage of not less than Three Million Dollars ($3,000,000.00). This coverage is to include: owned, hired and non-owned automobiles. The Automobile Insurance shall specifically cover all drivers/operators of all Vehicle(s) leased hereunder, and all Vehicle(s) themselves; and (D) Property Insurance with limits of liability of not less than Five Million Dollars ($5,000,000.00). Company s policies for the above-specified Commercial General Liability, Business Automobile Liability and Property insurance coverage shall be primary and noncontributory to any similar insurance and/or selfinsurance that Paramount maintains and shall add Paramount Pictures Corporation, its parents, divisions, subsidiaries, related or affiliated entities, and its and their officers, directors, agents and employees (collectively, the Paramount Parties ) as Additional Insureds and Loss Payees as its/their interests may appear. All of the aforesaid policies shall provide a waiver of subrogation in favor of the Additional Insureds/Loss Payees. Should any of the above described policies be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. Each of the above policies shall be issued by an insurance company qualified in California with an A.M. Best Rating of A or better. 15. Indemnification: Company shall defend, indemnify and hold harmless each of the Paramount Parties from and against any and all losses, damages, claims, demands, suits, judgments, causes of action, taxes, expenses, including but not limited to court costs and reasonable outside attorneys fees, and liabilities of any kind or nature whatsoever (all of the foregoing collectively, Losses ), including without limitation bodily injury, property damage and/or death, arising out of, or resulting from or relating to Company s, its employees', agents', drivers, operators, delegates, contractors' and/or representative s (collectively, the Production Parties ) use, possession, condition, operation, storage, loading, unloading, repair and/or transportation of the vehicle(s) and any other acts or omissions of the Production Parties relating to this Agreement, and/or a breach by any Production Co. Party of any representations, warranties, covenants and/or agreements of Production Co. herein, in each case except to the limited extent caused by the negligence or sole willful misconduct of Paramount. Company s obligations of indemnification, defense and hold harmless as set forth herein shall survive termination and/or expiration of this Agreement. 16. Return of Vehicle(s): Upon termination of the Agreement, Company shall return the vehicle(s) to Paramount, together with all accessories, free from any damage and in the same condition and appearance as when accepted by Company, allowing for ordinary reasonable wear and tear. If Company fails or refuses to timely return the vehicle(s) to Paramount, Paramount shall have the right to take possession of the vehicle(s) upon expiration or termination of this Agreement and for that purpose and acting reasonably to enter any premises where the vehicle(s) are located without being liable in any suit, action, defense or other proceedings to Company. 4

5 17. Encumbrances or Liens: Company shall not pledge, encumber, create a security interest in or permit any lien to become effective on any vehicle. If any of these events takes place, Company shall be deemed to be in default hereof, at the option of Paramount and Company shall still be required to obtain the immediate complete release of such lien or encumbrance. Company shall promptly notify Paramount of any liens, charges or other encumbrances of which Company has knowledge. Company shall promptly pay or satisfy any obligation from which any lien or encumbrance arises related to Company s use or possession of a vehicle, and shall otherwise keep the vehicle(s) and all right, title and interest thereto free and clear of all liens, charges, and encumbrances. Company shall deliver to Paramount appropriate satisfactions, waivers or evidence of payment. 18. Termination: The occurrence of any of the following shall constitute a material default and breach of this Agreement by Company: (A) failure by or refusal of any Production Party to fully and timely perform any obligation under this Agreement to be performed by Company hereunder; (B) breach by Company of any representation, warranty or covenant contained herein; (C) failure by or refusal of Company to obtain the release of any lien, encumbrance, attachment, garnishment, execution or levy ("lien") against the vehicle related to Company s use or possession of such vehicle within seventy-two (72) hours after any such lien attaches; (D) the making by Company of any general assignment for the benefit of creditors; the filing by or against Company of a petition under the United States Bankruptcy Code or any other like law; the appointment of a trustee or a receiver to take possession of substantially of all of Company s assets; the occurrence of any adverse change in Company s financial condition deemed material by Paramount acting reasonably; the dissolution, insolvency or cessation of business of Company; the inability of Company to pay its debts in the ordinary course; or the occurrence of any sale of all or a substantial part of Company's assets other than in the ordinary course of business; and/or (E) Company s default under or breach of any other agreement between Paramount and Company. In the event of any breach or default by Company under the terms and conditions of this Agreement, in addition to any other rights and/or remedies available to Paramount hereunder and/or at law and/or equity, Paramount shall have the right to terminate this Agreement effective upon written notice thereof and thereby declare forfeited Company s right to possession and use of the vehicle(s), and Paramount shall regain possession of the vehicle(s). Company expressly agrees hereunder that in the event of any such termination, Paramount shall have the unqualified right and Company s authority to enter upon any premises where the vehicle(s) is/are then located and peaceably repossess same. 19. Notices: Any notice required to be given hereunder by either party may be effected by reputable courier (FedEx, UPS) or by U.S. mail, postage prepaid to the address on record, but each party may change the address by written notice in accordance with this paragraph. Notices will be deemed communicated upon confirmation of delivery (if sent via reputable courier), or three (3) business days after mailing (if sent via U.S. mail). 20. Trademarks: Company is not granted any right to use, and shall not use, any trade names, trademarks or other proprietary or protected materials or information of Paramount or any of the Paramount Parties without the express prior written consent of Paramount in each instance. 21. Waiver of Jury Trial: Each party hereby absolutely, irrevocably and unconditionally waives to the fullest extent permitted by law all right to trial by jury in any litigation directly or indirectly arising out of, pertaining to or associated with (i) this Agreement, (ii) the actions of the parties in connection herewith and/or (iii) any agreement, instrument or document entered into by the parties in connection with this Agreement. 22. Miscellaneous: Neither this Agreement nor any duties or obligations under this Agreement may be assigned or delegated by Company without the prior written consent of Paramount. If any provision of these Terms 5

6 and Conditions is declared invalid, such decision shall not affect the validity of any remaining portions, which remaining portions shall remain in full force and effect. Failure of Paramount to require performance of any provision hereof shall not affect Paramount s right to require full performance thereof at anytime thereafter and the waiver by Paramount of any provision hereof shall not constitute or be deemed a waiver of any similar breach in the future or of any other breach, or nullify the effect of such provision. In the event of a dispute between the parties arising hereunder, Paramount shall not be liable for any claim or demand for any amounts representing loss of profit, loss of business or special, indirect, incidental, consequential or punitive damages. These Terms and Conditions supersede any conflicting provisions of the applicable P.O. numbers provided by Company. No agreement, amendment or understanding, the effect of which would be to modify these Terms and Conditions shall be binding upon Paramount unless such agreement or understanding is contained in writing and signed by Paramount. This Agreement and all matters related thereto shall be governed by and construed in accordance with the laws of the State of California applicable to agreements entered into by citizens thereof and to be fully performed within California without regard to its conflicts of law rules. Each of the parties hereto consents to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California. This Agreement may be executed in one or more counterparts and by facsimile and/or PDF signatures, each of which shall be deemed an original and all of which, when taken as a whole, shall constitute one and the same binding instrument. END OF DOCUMENT 6