PRODUCTION RESOURCE GROUP, L.L.C.
Production Resource Group, L.L.C. (“PRG”) agrees to provide equipment (the “Equipment”) and services, if any, (“Services”) to the customer (“Client”) under the terms of this Agreement. PRG includes all brands and all locations in the USA. Any Scope of Work, Quote, Bid, Proposal, Invoice or similar document issued by PRG (each a “SOW”), where work is performed under such document, is deemed accepted by Client and incorporated herein. Unless otherwise specifically addressed as a per event agreement in the SOW, this agreement is effective for one year from the date of execution, and will renew for additional one-year terms, unless specifically addressed in the SOW, or terminated by either party in writing.
1. PRG shall provide to the Client the Equipment under this Agreement. Any quote, bid, proposal, invoice, equipment list, scope of work, or similar document issued by PRG is incorporated herein (collectively “Contract Documents”). From time to time, in addition to Equipment, Client may also retain PRG to provide “Services”, including but not limited to creative or technical designs, supervision of labor or performing other on-site services, such as set-up or operation of Equipment. Such Services shall be detailed as part of the Contract Documents, and the provision of Services may require additional terms herein. Fees and payment terms for Equipment and Services, as applicable, are set forth on the invoice. A security deposit may be required by PRG.
2. The “Agreement Term” shall be effective for one year from the date of execution and will renew for additional one-year terms, for a maximum of 3 years unless otherwise extended by mutual agreement or terminated.
3. The “Rental Term” shall begin on the date the Equipment leaves PRG’s warehouse and shall end when the Equipment is returned at the place designated by PRG in the Contract Documents.
4. PRG represents that all Equipment will leave its custody in good working order. Client shall be responsible to inspect the Equipment upon receipt and immediately notify PRG if any Equipment is missing or not in good working condition. EXCEPT AS EXPRESSLY SET OUT HEREIN, PRG GIVES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INTERFERENCE, INFRINGEMENT OR ANY OTHER WARRANTY NOT EXPRESSLY AGREED TO IN WRITING.
5. PRG’s sole obligation and liability to Client in the event of a malfunction or failure of the Equipment solely caused by PRG shall be to repair the Equipment or provide Client with the same or similar Equipment.
6. Client is responsible for the Equipment for the entire Rental Term. Client assumes all risk in the use and operation of the Equipment and shall be responsible for providing safety devices and equipment to safeguard users of the Equipment and complying with all applicable federal, state and local laws or regulations, and all industry standards. Client agrees that it will not remove or permanently cover the tag or nameplates on the Equipment showing ownership in PRG. Client shall not make any alterations or additions to the Equipment and may not disassemble the Equipment except to the extent necessary to replace consumables. In the event Client enters a PRG worksite to prep, pack or pick up Equipment, Client agrees to follow all PRG safety and health protocols, if required.
7. Client shall reimburse PRG for the cost of any repairs (including charges for shipping, labor and parts) which are required due to any damage to the Equipment occurring during the Rental Term (other than damage which, in the judgment of PRG, is due to ordinary usage or PRG’s actions). If any or all Equipment is damaged beyond repair, or lost or stolen during the Rental Term, Client agrees to reimburse PRG for the full new replacement cost of the Equipment (without deduction for depreciation). Client further agrees to be responsible for rental costs of the lost or damaged Equipment until such time as Equipment is replaced or repaired.
8. At the end of the Rental Term or its earlier termination, Client shall at its cost and expense, return the Equipment to PRG in good condition and repair, reasonable wear and tear excepted. PRG shall notify Client of any damages or loss within a reasonable amount of time after the Equipment is returned. Client shall remain responsible for any damage to the Equipment caused during the Rental Term.
9. If applicable, Client is solely responsible for storing and clearing any and all images (in any form), or any other content or Client data (“Client Data”), prior to the return of the Equipment. Upon return of the Equipment, PRG may clean the Equipment of any Client Data, however PRG shall have no obligation to preserve or erase any Client Data. PRG shall not be responsible for disclosure of Client Data due to the re-rental of Equipment previously used by or on behalf of Client. PRG is not responsible for unrecorded Client Data or the loss of Client Data due to any cause whatsoever, including but not limited to, technical malfunction, physical damages, or errors on the part of PRG employees, agents, representatives, contractors or subcontractors.
10. The Equipment must remain at the venue(s) as set forth in the Contract Documents and may not be transferred without the express prior written approval of PRG. It shall be lawful for PRG or its agents to enter the premises where the Equipment is kept for the purpose of assessing the condition of said Equipment.
11. No allowance will be made for unused Equipment. Whenever Client is responsible for shipping the Equipment, Client must ensure the Equipment is appropriately stored and transported, and shall provide, at its sole expense, competent and professional air-ride equipment transportation for the Equipment, and will properly prepare all loads for transport, including but not limited to the use of ratchet straps, load bars and padding.
12. Rigging Specific Obligations of Client: If Rigging Equipment (as defined below) is included as part of Equipment, Client has the responsibility and obligation to assess the safety aspects of the use and application of the Rigging Equipment; to utilize trained and qualified personnel as operators; communicate all hazards and potential hazards to all users and operators; and assume all risks of use, including injury or death. Client should rehearse all manual and automatic operation with dummy weight prior to use and inspect and test all Rigging Equipment and wire rope daily. Client understands and accepts full responsibility for the safe and proper use, installation, operation and storage of the Rigging Equipment and for taking all actions to eliminate any hazards. Client acknowledges that it has been advised that the raising and lowering of the Equipment attached to rigging is a delicate and potentially dangerous task that should only be performed by persons who are adequately trained (Qualified and/or Competent Rigger). Client hereby ASSUMES FULL RESPONSIBILITY AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE during any use, operation, or performance of the Rigging Equipment and acknowledges that it has been warned of the potential hazards of Rigging Equipment, including but not limited to pinch, crush, fall and overhead hazards to name but a few. Client is responsible to procure all necessary permits, consents, and licenses for the event, and, if necessary, Client shall obtain a “stamped” high wind action plan, created by a licensed structural engineer, for all outdoor and/or temporary structures. PRG assumes no responsibility or liability for the use of the Rigging Equipment where there are aerial stunts being performed using any part of the Rigging Equipment or where rigging personnel of Client or third-party contractors are using Rigging Equipment as an anchor either for themselves or for any other equipment or attachments. “Rigging Equipment” shall include all spansets, slings, shackles, carabiners, pulleys, cordage, fall protection equipment, truss, truss bolts, truss pins, and potentially chains, chain motors and hoists.
13. If Client needs PRG or an affiliate to hire one or more Client selected labor (“Client Labor”), Client shall at all times remain solely responsible for the acts and omissions of the Client Labor, and Client shall be responsible for ensuring that all Client Labor are adequately trained, knowledgeable, experienced and skilled with respect to the work prior to performing Services. It is acknowledged and agreed by Client, that any Client Labor will be acting under the direct supervision and control of Client and not PRG. Client shall be solely responsible for providing such supervision and control and will protect the personnel, the Equipment and third parties from injury or loss. Client will fully indemnify PRG for the acts and omissions of Client Labor.
14. Client agrees to insure Equipment at all times during the Rental Term.
(a) Client shall, at its own expense, secure and maintain the following coverages, with insurers reasonably satisfactory to PRG: (i) commercial general liability insurance in an amount not less than $1,000,000 per occurrence, combined single limit bodily injury and property damage, including coverage for personal injury, operations, completed operations, product liability and contractual liability. Limits may be provided by a combination of commercial general liability and excess liability policies. PRG and its parent, subsidiaries, affiliates and each of their directors, members, managers, officers, and employees (“PRG Party”) shall be included as an additional insured on a primary and non-contributory basis including a waiver of subrogation in favor of PRG Party; (ii) evidence of workers compensation in statutory-required amounts including employer’s liability with a limit not less than $1,000,000; (iii) if Client is operating any vehicle at a PRG location, Business Auto Liability insurance shall also be required, with a limit of not less than $1,000,000 per accident; (iv) and property insurance on an “all-risks” basis, including but not limited to coverage for flood, earthquake, and terrorism and weather-related damage (such as water damage) with minimum limits equal to the full new replacement cost of for the Equipment, without deduction for depreciation. Coverage shall be included for inland transit, shall be primary, shall name PRG Party as additional insured and loss payee with respect to the Equipment, and shall cover all risks of loss of, or damage or destruction to, the Equipment. If any Equipment is leaving the continental United States, the property insurance shall be on a worldwide basis covering the shipment of such Equipment in containers, trucks, sea vessels or the like, via air, land or water shall also be provided, with appropriate limits and coverages as acceptable to PRG.
(b) Client shall provide certificates of insurance evidencing compliance with the provisions of these requirements at least 1 week prior to the Equipment being released, and Client is responsible to pay the full amount of a Claim, including retention and deductible, regardless of limits or applicability of coverage.
(c) In the event there are pyrotechnics used on this project, Client will name PRG as a primary additional insured on its liability policy for any claims whatsoever arising directly or indirectly from the use or presence of pyrotechnics.
(d) PRG shall provide certificates of insurance, with reasonable terms and limits, as reasonably requested by venue owners and operators in order to perform the Services hereunder.
(a) Client shall, at its own expense, secure and maintain the following coverages, with insurers reasonably satisfactory to PRG: (i) commercial general liability insurance in an amount not less than $1,000,000 per occurrence, combined single limit bodily injury and property damage, including coverage for personal injury, operations, completed operations, product liability and contractual liability. Limits may be provided by a combination of commercial general liability and excess liability policies. PRG and its parent, subsidiaries, affiliates and each of their directors, members, managers, officers, and employees (“PRG Party”) shall be included as an additional insured on a primary and non-contributory basis including a waiver of subrogation in favor of PRG Party; (ii) evidence of workers compensation in statutory-required amounts including employer’s liability with a limit not less than $1,000,000; (iii) if Client is operating any vehicle at a PRG location, Business Auto Liability insurance shall also be required, with a limit of not less than $1,000,000 per accident; (iv) and property insurance on an “all-risks” basis, including but not limited to coverage for flood, earthquake, and terrorism and weather-related damage (such as water damage) with minimum limits equal to the full new replacement cost of for the Equipment, without deduction for depreciation. Coverage shall be included for inland transit, shall be primary, shall name PRG Party as additional insured and loss payee with respect to the Equipment, and shall cover all risks of loss of, or damage or destruction to, the Equipment. If any Equipment is leaving the continental United States, the property insurance shall be on a worldwide basis covering the shipment of such Equipment in containers, trucks, sea vessels or the like, via air, land or water shall also be provided, with appropriate limits and coverages as acceptable to PRG.
(b) Client shall provide certificates of insurance evidencing compliance with the provisions of these requirements at least 1 week prior to the Equipment being released, and Client is responsible to pay the full amount of a Claim, including retention and deductible, regardless of limits or applicability of coverage.
(c) In the event there are pyrotechnics used on this project, Client will name PRG as a primary additional insured on its liability policy for any claims whatsoever arising directly or indirectly from the use or presence of pyrotechnics.
(d) PRG shall provide certificates of insurance, with reasonable terms and limits, as reasonably requested by venue owners and operators in order to perform the Services hereunder.
15. To the fullest extent permitted by law, Client expressly agrees to indemnify, defend and hold harmless PRG Party from and against any and all liabilities, claims, demands, actions, losses, damages and expenses (including, without limitation, reasonable outside attorneys’ fees and costs) for personal injury, death or property damage to the Equipment or other property (“Claim”), to the extent resulting from any of the following: (1) Client’s breach of any terms in this Agreement; (2) Client’s use or possession of Equipment; (3) Client’s negligence or willful misconduct; (4) the transport or shipping of the Equipment, if shipped or arranged by Client; or (5) violation of any rule, regulation or law. This indemnity includes indemnity by Client for claims of personal injury, death or property arising from civil unrest occurring at any site in which the Equipment is located, without regard to Client’s actual participation in the unrest. Client shall not be obligated to indemnify or hold harmless PRG to the extent a Claim arises out of the negligence or willful misconduct of a PRG Party.
16. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES IN CONNECTION WITH THE RENTAL OF THE EQUIPMENT WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. (a) Force Majeure: Except as otherwise set forth herein, nonperformance by either Party of any of its obligations under the Agreement will be excused to the extent and only for so long as such performance is rendered impossible by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, strike (other than of the nonperforming Party or its subcontractors), governmental acts, failure of suppliers, including supply chain and manufacturer issues, third party trucking and labor shortages (not caused by a Party), or any other similar cause beyond the reasonable control of the nonperforming Party that would make it impossible, inadvisable or illegal to either render the Services or hold the event and the nonperforming Party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible. Client shall reimburse PRG for its actual costs incurred in the event of Force Majeure, and PRG agrees to use commercially reasonable efforts to mitigate costs.
(b) Late Delivery: PRG shall not be liable for late delivery or damage to the Equipment caused by (i) Client’s failure to provide information relevant to this Agreement or (ii) a Force Majeure Event, including manufacturer, third party trucking and supply chain issues. In the event of such delay, the time for delivery shall be extended for the same period that PRG was delayed by such occurrence.
(b) Late Delivery: PRG shall not be liable for late delivery or damage to the Equipment caused by (i) Client’s failure to provide information relevant to this Agreement or (ii) a Force Majeure Event, including manufacturer, third party trucking and supply chain issues. In the event of such delay, the time for delivery shall be extended for the same period that PRG was delayed by such occurrence.
18. Client will be responsible to pay additional fees for any additional Equipment and Services, if any, not included in the SOW. Client will pay PRG’s current daily rate for late return of the Equipment. Client will incur cancellation fees in the event of any cancellation occurring within 10 days of the start of the Rental Term as follows: 4-10 days = 50% of Fee due; Under 3 days= 100% of Fee due. In the event of cancellation for any reason occurring more than 10 days prior to event, Client shall pay PRG all actual costs incurred.
19. Either party may terminate this Agreement with 60 days prior written notice. Any event in progress will be completed under the terms of this Agreement. Any termination of this Agreement shall not terminate any of Client’s obligations to PRG under this Agreement that have not yet been performed, including any ongoing obligations of payment and return of Equipment.
20. This Agreement does not constitute a sale of or create a security interest in the Equipment. PRG shall at all times retain sole ownership and title to the Equipment and Client shall not have or at any time acquire any right to ownership including through mere use, loss, damage, or failure to return the Equipment as provided herein.
21. Equipment lists and quotes may not always include sales or use taxes or freight charges. All taxes, withholdings, if applicable, and freight charges, if any, will be included in the invoice and paid for by Client in addition to the agreed upon Fee. Client agrees to indemnify PRG for any taxes incurred and costs relating to penalties and collections.
22. Unless otherwise agreed upon in writing, payment terms are COD. Payment of all Fees are due as set forth in the invoice. Client will incur additional fees for late returns and damage to the Equipment. PRG will charge the highest rate allowed by law on all late payments. If PRG commences a collection action, Client will be liable for all expenses incurred, including reasonable outside attorney’s fees and costs of collection.
23. If Client defaults on payment or otherwise breaches any other terms, or if PRG reasonably believes that the Equipment is in danger of being seized, taken or destroyed, then in any event, PRG shall have the right to terminate this Agreement, and retake immediate possession of the Equipment and for such purpose, PRG may enter upon the premises where the Equipment is located and remove it, with or without force or notice, without being liable to the Client in any suit, action or other proceeding.
24. The failure by PRG to insist upon strict compliance with these terms and conditions even after a breach or default by Client shall not be construed as waiver of any of PRG’s rights under this Agreement.
25. Any required written notices shall be deemed given if sent by (i) a recognized overnight delivery service providing proof of delivery (such as FEDEX) or registered or certified mail, return receipt requested, to the addresses shown in this Agreement or the Contract Documents or (ii) email, providing there is a response email confirming receipt. Copies of all notices sent to PRG must also go to: notices@prg.com and PRG Legal Department, 1245 Aviation Place, San Fernando, CA, 91340.
26. This Agreement may not be assigned by Client unless agreed to in writing by PRG.
27. These terms and conditions shall be governed by the laws of the State of New York and venue and jurisdiction shall be vested exclusively in a court of competent jurisdiction sitting in Westchester County, NY Both parties agree to accept service of process within or without the State of New York in any matter relating to this Agreement. The prevailing party in any such litigation or action shall be entitled to its costs of suit and reasonable outside attorney’s fees.
28. If one or more provisions of this Agreement, or the application of any provision to any party or circumstance is held to be invalid, unenforceable or illegal in any respect, the remainder of this Agreement shall remain valid and in full force and effect.
29. PRG expressly rejects any forms or other documents submitted by Client, including PO terms and conditions. Any attempt to modify, supplement or amend these terms and conditions will be null and void unless agreed to in writing by PRG.
30. This Agreement, including any Contract Documents, contains the entire understanding between the Parties and may not be modified except in a writing signed by both Parties appended hereto. These terms and conditions shall be binding, and Client shall be deemed to have accepted the terms and conditions contained herein when (a) Client has received a copy hereof or (b) Client accepts any of the Equipment or Services.
BY ACCEPTING ANY EQUIPMENT, CLIENT ACKNOWLEDGES ITS RESPONSIBILITY FOR THE TIMELY RETURN OF THE EQUIPMENT IN GOOD WORKING CONDITION, WEAR AND TEAR EXCEPTED.
PRG CANNOT GUARANTEE PRICING OR DELIVERY DATES UNTIL THIS AGREEMENT IS SIGNED AND DEPOSITS ARE PAID.