ARTICLE 1: SCOPE
These General Conditions (‘General Conditions’) apply to all film-making and/or video-filming services (‘Services’) associated with the production of the film containing the images resulting from the Services (‘Products’), rendered by AERING Sas 73 rue du chateau 92100 Boulogne BT (France) or Aering Srl Drie Fonteinenstraat 30 1600 Sint Pieters Leeuw (Belgium) or Aering Ltd AERING Ltd Suite 17th Floor, 50 Broadway London SW1H OBL (UK) operating under the name ‘AERING’ , to any professional, natural or legal person, private or public (‘Client’).
Placing an order with AERING shall entail application of these General Conditions, possibly amended by the Special Conditions of the estimate or by a written agreement signed by AERING, and their full acceptance by the Client.
The Client acknowledges that its own purchase terms or any other similar document do not apply to its relationship with AERING, despite any stipulation to the contrary in any document issued by the Client (purchase order, general purchase terms or other). Any condition of purchase by the Client, whatever it may be and at whatever time it has been brought to the attention of AERING, shall be unenforceable against AERING, unless it has given its express prior written consent.
ARTICLE 2: ESTIMATE, CONTRACT
All orders for services shall be the subject of an estimate calculated by AERING, which shall constitute a contract offer (“estimates”). Unless otherwise provided, the bill of quantities shall be valid for fifteen (15) days from the date of its issue. After this deadline, the Devis lapses.
The order is firm and final, and the contract between AERING and the Client is formed, upon receipt by AERING of the signed and dated bill of quantities from the Client and the payment of an advance of at least fifty per cent (50 %) of the total amount of all taxes included in the bill of quantities. L e Devis dated and signed then signifies acceptance by the Client and constitutes the binding contract between the parties (‘Contract’).
However, the commencement of performance of the order by AERING shall be deemed to constitute a final order and, consequently, shall be deemed to constitute the conclusion of the contract between the parties by tacit acceptance.
The Contract or any firm and definitive Order for Services shall be honoured by the Client, who shall perform it. The benefit of the Contract is personal to the Client and may not be transferred without the agreement of AERING.
Ordering a service requiring AERING to obtain an overflight derogation is subject to acceptance of the Devis and payment of the advance of fifty percent (50 %) of the price, within a minimum period stated by AERING in advance (according to the legal deadlines of the competent authority) before the scheduled starting date of the service (start of filming). AERING is not responsible for failing to obtain this derogation or for the meteorological risk likely to delay performance of the service. Under these General Conditions, working days are Monday to Friday inclusive, with the exception of public holidays usually not worked in France.
ARTICLE 3: CUSTOMER COOPERATION
The Client undertakes to maintain active and permanent cooperation with AERING in order to ensure the proper performance of the service. He shall inform AERING, as soon as he becomes aware of it, of any event likely to delay or compromise the proper performance of all or part of the service.
The Client shall provide AERING, as soon as possible and at its first request, with all the information, documents, documentation, materials and data necessary for the proper performance of the service.
The Client shall carry out all the administrative procedures (public and private) necessary for the performance of the service, with the exception of those relating to flight authorisations which are carried out by AERING.
If the Client has not obtained the administrative authorisations (public or private) necessary for the performance of the service, the Client may waive entitlement to the contract no later than one month before the start of the service or the start of performance of the contract by registered letter with acknowledgement of receipt (postal or electronic) to AERING in return for payment to AERING of compensation equal to fifty percent (50 %) of the total amount of the estimate. If this option is exercised within a shorter period, the compensation shall be equal to one hundred percent (100 %) of the total amount of the estimate. The compensation provided for above shall be payable immediately by the Client, and the Contract shall continue to apply until it has been paid in full. The amount of the down payment made when the estimate is signed is then retained by AERING.
ARTICLE 4: EQUIPMENT
The performance of the service and the production of the product require the use of materials, equipment or accessories such as cameras, lenses, aeronautical equipment, accessories, etc. (“Material”). The equipment is rented from the Client.
The part of the price relating to the hire of the equipment shall be payable for at least the entire contractual period, even in the event of a temporary or permanent interruption of its use by the Client. Rental days shall be deducted until the equipment returns in full to AERING’s premises, in perfect condition, including the day of return.
No reduction shall be granted as a result of the equipment being stranded for any reason whatsoever, in particular because of customs difficulties, strikes, seizures, etc.
The extension of the rental period of the equipment is subject to the prior written consent of AERING and to the availability of the equipment. The rental price for the additional period shall be that in force on the date of the additional period; it shall be communicated to the Client on the date of his request for an extension. Any additional costs shall be borne in full by the Client.
Performance of the Contract shall not confer on the Client any right of ownership or any other right in respect of the equipment.
Notwithstanding the above, the custody of the equipment is automatically transferred to the Client outside filming hours, at night and on public holidays or non-working days. During these periods, the equipment is placed under the customer’s care and supervision, which ensures its safety at its own expense. The costs of security or surveillance of the equipment shall be borne exclusively by the Client.
In any event, the Client is required to implement the necessary organisation to secure the equipment used during the period of performance of the service. He shall be liable for any damage caused to the equipment as a result of inappropriate instructions given to staff or any person present at the location of the shooting, or as a result of poor organisation of the shooting.
ARTICLE 5: STAFF
Each staff working day is charged at the rate of 100 % for the days worked (departure and return to the hotel, “Door to Door or Hotel to Hotel”).
If the Client makes staff available (machine leader, rigger, technician, etc.) to complete the team carrying out the service, AERING does not manage or control them and cannot therefore be responsible for the operations carried out by the staff present at the Client’s demonstration or production, who alone remains liable for any damage caused by these persons.
The Client undertakes to provide a healthy and lawful working environment enabling the services to be performed under optimum health and safety conditions, and is liable for any damage caused by inappropriate instructions given to AERING’s employees or subcontractors.
ARTICLE 6: DEADLINES
AERING shall make every effort to meet the deadlines for completion of the service and/or delivery of the product. By express agreement, these time limits may be modified in the light of the availability of the equipment, weather conditions and any other event likely to affect the making of images or filming. Under no circumstances shall AERING be responsible for any malfunctions or delays on the part of the air, land or sea transport company responsible for transporting the equipment, in accompanied baggage or in cargo, and which might hold it or deliver it late.
In any event, the supply and/or delivery of the Product within the time limits can only take place if the Client is up to date with its obligations towards AERING.
ARTICLE 7: RECEPTION OF THE PRODUCT (IMAGES) AND GENERIC
The Client undertakes to check the conformity of the Product before declaring the end of filming in order to validate the delivery of the Service.
Non-compliance of the Product shall be notified to AERING by registered letter with acknowledgement of receipt within five (5) working days of receipt of the Product. The Client shall attach to its complaint the details and supporting documents of the defects found. It affords AERING every facility to establish those defects and to remedy them by refraining from intervening itself or involving a third party for that purpose. In the absence of a complaint within the above period, the performance of the services and of the contract shall be deemed to be in conformity.
ARTICLE 8: PRICE, PAYMENT TERMS
The price indicated on the estimate shall be that in force on the date on which it is drawn up. It is indicative in so far as certain elements of the price such as the actual duration of the service, the number of persons and the equipment are not definitively fixed at that date.
The customer is required to pay: hire of equipment (gyrostabilised heads, camera, lenses, ancillary aeronautical equipment, etc.), costs related to the persons responsible for providing the service (hotel, meals, taxi, per diem), travel costs (including tolls), taxes linked to the hire of an aircraft, landing, parking, specific to an airport, security costs.
Unless otherwise stipulated, the service shall be invoiced and paid, preferably by transfer, as follows:
the payment on account is made on receipt of the invoice;
the balance shall be paid on the date of delivery of the Product, within fifteen (15) days, date of invoice.
No discount shall be granted in the event of advance payment. No compensation is allowed without the prior written consent of AERING.
In the event of failure to pay the advance within the period referred to above, AERING reserves the right to suspend the service until it has been paid or to cancel the contract outright, without prejudice to its right to obtain compensation for any damage caused, in particular for the costs and expenses incurred.
Any sum not paid by the due date shall automatically incur late-payment penalties set at the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points, as well as liquidated damages of EUR 40 for recovery costs, with AERING reserving the right to claim additional compensation, upon justification. Failure to pay all or part of the price by the due date shall render all outstanding amounts immediately payable, even if they have not yet fallen due and irrespective of the method of settlement provided for.
In the event of late or non-payment, AERING may, fifteen (15) days after notice has been served by registered letter with acknowledgement of receipt:
interrupt the provision of services and deliveries of products in progress and the performance of all or part of the contracts in progress, cancel the Contract in whole or in part.
The exercise by AERING of any of the above options is without prejudice to the payment of outstanding amounts and penalties for late payment, and without prejudice to any other remedy.
Under no circumstances may payment of the price be offset or reduced without the express prior agreement of AERING. The parties expressly agree to exclude the provisions of Articles 1223 and 1195 of the Civil Code, each of them dealing with the consequences of any changes in circumstances. The provisions of Article 1223 of the Civil Code are also disregarded, as the customer cannot have the service provided by a third party.
ARTICLE 9: RETENTION OF OWNERSHIP – TRANSFER OF RISK
AERING shall retain the Product’s material and intellectual property rights until payment in full of the principal and ancillary costs has actually been received.
If payment is not made within the prescribed period, AERING reserves the right to take back the Product at the expense and risk of the customer. In the event of seizure or any other intervention by a third party on the Product, the Client must inform AERING without delay in order to allow it to object and safeguard its rights. The Client undertakes not to sell or dispose of the Product in any other way and shall refrain from pledging or assigning it as security before payment of the full price to AERING. Since the risks to the Product are borne by the customer, in the event of theft, loss, destruction or damage, AERING’s entitlement is carried over to the insurance indemnity.
Notwithstanding the above retention of title, once the Product has been received, the risks shall be automatically and definitively transferred to the Client, which shall be responsible, in particular, for the risks of deterioration, loss, destruction, partial or total, whatever the cause, including in cases of force majeure or unforeseeable circumstances.
ARTICLE 10: INTELLECTUAL PROPERTY
The intellectual property rights relating to the Products are transferred to the Client once the full price has been paid, as indicated above.
The assignment shall include the rights of reproduction, representation, adaptation, modification, translation, in any medium, known or unknown, for the whole world.
ARTICLE 11: END GENERIC
The Client undertakes that: “AERING: Aerial or special filming’, associated with the AERING logo, with the first name, surname and position of each technician involved in the performance of the service, appears in the end generic.
ARTICLE 12: PERSONAL DATA
In performance of the Contract, each of the Parties undertakes to collect and process personal data (‘Personal data’) collected directly or indirectly through the other Party, in compliance with Law No 78-17 of 6 January 1978, as amended, on ‘Data Processing and Freedoms’, of Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter referred to together as ‘the Rules’).
For its part, AERING collects and processes the Personal data of the contacts and interlocutors, natural persons, of the Client strictly necessary for the performance of the Tender, the Contract, the Service and the commercial relationship, such as: surname, first name, professional postal and e-mail addresses, telephone number and function. The purpose of collecting Personal Data from the Client is to implement and perform the Contract and, more generally, to process and improve relations with the Client.
It should be noted that AERING may transmit these Personal Data to third parties in cases where the law requires or authorises it to do so, in particular as a result of a court decision or any other legal request or requirement. Such data may also be shared with companies domiciled outside the European Union (EU) where strictly necessary for the performance of the Contract and the business relationship, including its subcontractors, business partners and suppliers. AERING guarantees that these third parties will have only limited access to the Personal Data necessary for the performance of their services and will be obliged to use them in accordance with the provisions of the Rules.
In any event, AERING guarantees an adequate and appropriate level of protection, in particular by regulating transfers of such Personal Data to countries which do not have an adequate level of protection, by means of standard contractual clauses validated by the European Commission. AERING shall implement technical, organisational, logical and physical security measures to protect the Customer’s Personal Data against any alteration, loss, unauthorised access or use and dissemination. AERING keeps these Personal Data for as long as is strictly necessary for the implementation of the business relationship and more generally for the purposes mentioned above. After that period, AERING undertakes to destroy the suppliers’ data in its possession, unless otherwise stipulated.
Data subjects have the following rights: right of access, rectification, erasure, objection, right to portability of personal data, right to restriction of processing and right to choose the fate of personal data after death. These rights can be exercised through AERING SAS or AERING SRL or AERING LTD ; email address: ops@aeringmedia.com In addition, and in accordance with the Rules, any person has the right to refer the matter to the Commission Nationale de l’Informatique et des Libertés (the contact details of which can be found at https://www.cnil.fr/fr/ vous-souhaitez-contacter-la-cnil) if AERING has not responded to a request within one month of the request. However, these deadlines may be adjusted according to the complexity and number of requests to be dealt with.
ARTICLE 13: Confidentiality
Information exchanged between AERING and the Client in connection with the performance of the Contract, as well as technical documents and data (“Confidential Information”), shall be confidential and may not be disclosed to third parties without the prior written agreement of the party which provided it during the term of the Contract and for three (3) years following its termination, whatever the cause.
Confidential information may only be used for the sole purpose of performing the Contract, providing the services and preparing the estimate.
AERING undertakes to keep confidential all information relating to the Product until it is disseminated to the public or the project is abandoned.
Information shall not be considered Confidential information if it:
are in the public domain at the time of their disclosure, are published or enter the public domain after disclosure, without any fault on the part of AERING,are lawfully communicated by a third party, are already in the possession of a Party at the time of their disclosure; shall be developed independently by each of the Parties.
ARTICLE 14: INSURANCE
Damage to the equipment made available to the Client by AERING is guaranteed by AERING taking out insurance against damage to property, which gives rise to payment by the Client of an amount corresponding to 8 % of the total amount of the services invoiced.
If the Client decides to take over the insurance cover for damage to the equipment made available to it, whether the equipment is rented or loaned, it must provide proof at least eight (8) days before the start of filming, that AERING has taken out a guarantee covering all material damage to the equipment (in particular as a result of fire, explosion, water damage, lightning, natural disasters) and guaranteeing reimbursement of the equipment in new value; all over a period covering the entire duration of the shooting. In this case, and provided that all the conditions set out above are met, no contribution to the cost of the insurance shall be invoiced in addition to the price of the service.
The insurance guarantee taken out by AERING does not guarantee damage to the negative/cassettes/recording medium of the products.
Furthermore, AERING holds a professional indemnity insurance contract covering the financial consequences of its civil liability for the consequential personal injury, material damage and immaterial damage caused to third parties in the performance of the Services and the Contract.
The customer shall be required to take out and maintain in force an insurance contract with a company which is well known to be solvent, guaranteeing:
the financial consequences of its civil liability for any consequential personal injury, material damage or immaterial damage which may be caused to third parties, including AERING’s employees or subcontractors, during the event and/or production,
material damage to his or her property, that of his or her staff and, in general, to any property which he or she uses during the provision of the services, including any helicopter or aircraft used for the performance of the services.
In the event that a helicopter or aircraft is used for the performance of the Services or the Contract, the Client undertakes to appoint AERING, its subsidiaries, pilots and crew, as additional insured persons, under the air liability insurance contract which the Client undertakes to take out for a minimum amount of guarantee of EUR 5 000 000 in respect of damage to property and EUR 15 000 000 in respect of personal injuries, from a company which is well known to be solvent, for the period of the demonstration and/or production, with a waiver clause for the insurer and the owner of the helicopter or aircraft for the benefit of AERING, its subsidiaries, pilots and crew. The Client must provide AERING with proof of this at least eight (8) days before the start of performance of the services by providing a certificate of insurance in force. Any delay by the Client in the communication of the insurance certificate shall entail de facto suspension of the provision of the service by AERING until the Client ensures the communication of that certificate.
ARTICLE 15: RESPONSIBILITY
Under the Contract, AERING is under an obligation to use its best endeavours and to provide any services. Without prejudice to the other provisions of the General Conditions excluding its liability in certain specific cases, AERING shall incur (a) its contractual liability only if the Client proves a breach of contract and damage directly caused by that breach; and (b) its liability in tort, in accordance with ordinary law, in the event of fault having a direct and certain causal link with the damage caused to third parties.
In any event, AERING’s liability does not cover indirect damage and is limited to the price paid by the Client in the performance of the service, except in cases of gross negligence or fraud and except for personal injury.
AERING cannot be held liable in the event of damage to the negatives/Media cards/recording medium of the products. AERING does not guarantee the quality or suitability of the equipment chosen by the customer, or the quality of the results obtained or of the product.
ARTICLE 16: FORCE MAJEURE
AERING is relieved of its obligations in case of force majeure. In particular, the following shall be considered to be cases of force majeure: war, fire, epidemics, strikes, accidents, roadblocks, inability to obtain supplies of raw materials or any other inability to perform the contract .
AERING shall inform the Client of a case of force majeure as soon as possible. The Contract shall then be automatically suspended. If the event of force majeure persists for more than thirty (30) days, the parties shall meet in order to adjust to the consequences of the event of force majeure and, if necessary, terminate the contract if the prevented obligation cannot be postponed, without the other party being entitled to claim damages.
ARTICLE 17: SPECIFIC PROVISIONS
Safety instructions. Safety instructions for filming with aerial filming must be printed from the website and distributed, annexed to the production service sheet.
Nullity If a provision of the General Conditions and the Contract is, for whatever reason, held to be invalid, unlawful or inapplicable in any respect, it shall be deemed to be unwritten and the other provisions shall retain their full force and scope. The parties shall endeavour in good faith to replace that provision with another clause intended to have an economic and legal effect equivalent to the origin clause.
Non-renunciation. The fact that one of the parties does not avail himself of a provision of the General Conditions and of the Contract or of a breach thereof does not constitute a waiver of the right subsequently to invoke the benefit of that provision or to plead that breach. No waiver shall be valid unless it has been made in writing and signed by a duly authorised representative of the withdrawing Party. The waiver by either party of its rights in respect of a provision of the Contract shall not be construed as a waiver of its rights in the event of a subsequent breach of the same or any other provision of the Contract.
Titles. Titles are inserted for the sole purpose of facilitating reference and may not be used to interpret articles or to affect their meaning. Therefore, in the event of difficulties of interpretation between any of the titles and any of the clauses of the General Conditions, the titles will be declared non-existent.
Amendment. Unless expressly provided otherwise, any amendment shall be valid only if it has been the subject of a prior written supplementary agreement signed by each of the parties’ duly authorised representatives.
Information. The contract has been the subject of free, informed and bona fide negotiation between the parties. The Client certifies that it has a perfect knowledge and understanding of the General Conditions of which it has previously received a copy in order to study it.
Survival of the clauses. The expiry or termination of the Contract, whatever the cause, shall be without prejudice to the rights and remedies of either party which may have been exercised under the Contract up to the date of its expiry or termination, and shall not affect any provision of the Contract which is expressly or implicitly intended to enter into or remain in force on or after the date of expiry or termination.
ARTICLE 18: APPLICABLE LAW, CONFERRAL OF JURISDICTION
By express agreement, the relationship between AERING and the Client, the Devis, the General Conditions, the Contract, the supply of the Service and the Product shall be governed by French (AERING SAS) or UK (AERING LTD) or Belgium (AERING SRL) law, with the exception of the provisions of the Vienna Convention.
Any dispute relating to the interpretation and/or conclusion and/or performance and/or termination of an order, a service, a contract or the termination of the business relationship or its consequences shall fall within the exclusive jurisdiction of the tribunal de commerce de Nanterre (AERING Sas) or Brussels (AERING Srl) or London (AERING UK), even in the event of an action on a warranty or guarantee or of several defendants.