PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SITE
1.1 In this Agreement, unless clearly inconsistent with or otherwise indicated by the
1.1.1 any reference to the singular (including in the expressions defined in 1.1
includes the plural and vice versa, any reference to natural persons includes
legal persons (corporate or unincorporated) and vice versa and any
reference to a gender includes the other genders;
1.1.2 headings and the use of bold typeface are to be ignored;
1.1.3 references to any enactment shall include references to such enactment as
it may, after the Signature Date, from time to time be amended,
supplemented or re-enacted;
1.1.4 any reference to a number of days shall be a reference to calendar days,
unless it is specifically stated that such reference is a reference to Business
1.1.5 when a number of days is prescribed, the days shall be reckoned exclusively
of the first day and inclusively of the last day unless the last day falls on a
Saturday, Sunday or public holiday in which case the last day shall be the
next succeeding Business Day;
1.1.6 a reference to any Agreement or other document (including this Agreement)
shall include references to such Agreements and documents as they may,
after the Signature Date, be amended;
1.1.7 where appropriate, meanings ascribed to defined words and expressions in
1.1, shall impose substantive obligations on the Parties;
1.1.8 a reference to a recital, clause, sub-clause, paragraph, sub-paragraph,
schedule or appendix is, unless indicated to the contrary, a reference to a
recital, clause, sub-clause, paragraph, sub-paragraph, schedule or
appendix of this Agreement;
1.1.9 where any term is defined within the context of any particular clause or sub-
clause, the term so defined shall, unless it appears clearly from such clause
or sub-clause that such term has limited application to the relevant clause
or sub-clause only, bear the meaning ascribed to it for all purposes in terms
of this Agreement, notwithstanding that such term has not been defined in
1.1.10 the words “material” and “materially” mean, when used as an adjective in
conjunction with an event, condition, circumstance, effect or other item, that
there is a substantial likelihood that a reasonable expert would attach
importance to the event, condition, circumstance, effect or item in evaluating
the Party to which it relates and/or the event, condition, circumstance, effect
or item contemplated in this Agreement;
1.1.11 where this Agreement requires a Party to use its “Best Endeavours” in
relation to an act or omission, that Party shall do all such things as are or
may be necessary or desirable so as to achieve that act or to omit taking an
action, until the Parties agree that it is not reasonable to take the action or
to omit taking an action;
1.1.12 in the interpretation of this Agreement, the contra proferentum rule of
interpretation shall not apply (this Agreement being the product of
negotiations between the Parties), nor shall this Agreement be construed in
favour of or against any Party by reason of the extent to which any Party or
its professional advisors participated in the preparation of this Agreement;
1.1.13 the use of the words “include”, “including” and “in particular” in this
Agreement followed by a specific example or examples shall not be
construed or interpreted as limiting the meaning of the general wording
preceding it and the eiusdem generis rule shall not be applied in the
interpretation of such general wording and/or such specific example or
examples and the words “other” or “otherwise” shall not be construed
eiusdem generis with any preceding words where a wider construction is
1.1.14 the expiry or termination of this Agreement shall not affect such provisions
as expressly provide that they will operate after any such expiration or
termination or which of necessity must continue to have effect after such
expiration or termination, notwithstanding that the clauses themselves do
not expressly provide for this.
1.2.1 “Agreement” means this Agreement together with any annexures or
appendices, including the Schedule;
1.2.2 “Confidential Information” shall mean:
126.96.36.199 All material of whatsoever nature compiled and written but is not
limited to all intellectual property rights, strategy, all trade secrets,
concepts, compilations, videos, printed materials, studies and
other material prepared by or in possession or control of the
Company, as the case may be, which contain or otherwise reflect
or are generated from any such information as is specified in this
188.8.131.52 any dispute between the Parties resulting from this Agreement.
1.2.3 “Approval Deadline” means the date by which work in respect of a Project
must be Approved or submitted by the Company to the Client for final
acceptance after Review and Sign-off has occurred;
1.2.4 “Approval” means final acceptance work in respect of a Project submitted
to the Company;
1.2.5 “Effective Date” means the date on which the last party in time signs this
Agreement, therefore also being the signature date;
1.2.6 “Quotation” means a quote or proposal for the price of a Project or any
1.2.7 “Project” or “Production” means a production and may involve either a
Film Project being a large Project or any other Project, which shall
conversely be considered a small Project;
1.2.8 “Permit” means a legal Permit or a license obtained from the relevant
1.2.9 “Release” or “Releases” means a Personal Release signed by the Client or
relevant party which grants ownership to the Company of the right to use
the voice and image of the Client/ signatory to said Personal Release Form
annexed as Annexure A. A release shall be compulsory in the case of a Film
or a large Project;
1.2.10 “Review” means the perusal and submission of commentary by a Client in
respect of a draft in relation to work in respect of a Project;
1.2.11 “Sign-off” means the approval by the Client alternatively, the Client’s
indication of its satisfaction after Review has been completed and after
comments raised (if any) by the Client during Review have been addressed
by the Company;
1.2.12 “Work” means work product in relation to a Project undertaken by the
Company in terms of this Agreement.
2 COST AND INDEMNITY
2.1 All Quotations, including changes to specification, are valid for a period of 14 days
from the date of issuing.
2.2 Subject to 2.3 and 2.4 below, any variations to the timelines agreed by the Parties
shall only become effective once the Company has confirmed such in writing.
2.3 The Client will be liable for any and all additional costs resulting from variations
and/or additional requests and the Company may, at its discretion, produce a new
or amended Quotation incorporating the additional costs associated with the
changes. For the sake of clarity, whether a new or amended proposal is drawn
and signed or not, any additional expenses incurred by the Company resulting from
changes made by the Client, whether verbal or in writing, or adjustments in
timelines resulting from the Clients action or inaction shall be for the Client’s
2.4 Should any changes or revisions affect the delivery or completion dates, the
Company will not be liable in any way whatsoever in respect of delays (and any
costs occasioned thereby). The Company may reissue or withdraw a Quotation for
any reason before acceptance thereof.
3.1 Production Dates are only supplied as a guideline, a Project or Production shall
only commence once a Quotation is accepted by the Client and the deposit therein
contained reflects in the Company’s bank account.
3.2 The Company shall not be responsible or liable in any way whatsoever for a delay
in production not occasioned by it and any additional costs incurred by the
Company resulting from a delay shall be will be for the Client’s account.
3.3 Should the Client not communicate with the Company for a period of 14 days or
longer such failure shall result in any outstanding balances becoming immediately
due and payable and the Project being placed on hold.
3.4 There shall be no employment relationship, joint venture or partnership, nor is there
any expectation, notwithstanding any extension or renewal of this contract by the
Client or prolonged period of engagement.
4 PAYMENT TERMS
4.1 On Approval of the Quotation, an invoice will be generated and 50% of the Project
Price indicated thereon will become immediate due and payable.
4.2 On Approval or Completion of the Project alternatively on Delivery of the Project to
the Client remaining balance together with any additional costs and expenses shall
be paid no later than within 30 days of its first rendition.
5 CLIENT REVIEW AND APPROVAL DELAYS
5.1 The expected Review times are as stated in the Quotation or as may be otherwise
agreed between the parties in writing.
5.2 Any delay from the Client during the allocated Project Review or Approval time will
cause a delay in the delivery of the Project(s) by the same amount of working days.
5.3 If the Client delays the allocated Review or Approval Deadline then the Company
reserves the right to, in its sole and absolute discretion:
5.3.1 Charge the Client a penalty equal to the amount that would have been
charged to the Client for the resources specifically assigned to the Project
per day for the amount of days of the delay, and any necessary days
5.3.2 Sign-off the Project as approved and complete, and invoice the Client for all
outstanding sums. Any further requests by the Client after the deadline date
may, at the Company’s sole discretion, be treated as a new Project and
proposed and quoted for separately.
6 RESPONSIBILITY FOR ACCURACY
6.1 The Client shall be responsible for the accuracy, completeness and propriety of
information concerning the Client’s products and services which are furnished to
the Company, verbally or in writing, in connection with the performance of this
6.2 Should the Client require that the Company provide additional services in respect
of a Project or Production subsequent to Approval being received by the Company
from the Client; the Company shall be entitled to charge an additional fee such
additional services where the Client shall bear the costs of such additional fee.
7 PAYMENT FOR NON-CANCELABLE MATERIALS
7.1 Any non-cancelable materials and services which the Company has committed
itself to purchase on account of the Client, (either specifically or as part of a plan
such as modules, photography and/or external services) shall be paid for by the
Client, in accordance with the provisions of this Agreement. The Company will
provide written proof, upon request of the Client, that any such materials and
services are non-cancelable.
8 UNPAID MATERIALS
8.1 If upon termination there exist any materials furnished by the Company or any
services performed by The Company for which has not been paid in full by the
Client, until such time the Client agrees not to use any such materials, in whole or
in part, or the product of such services.
9 RESPONSIBILITY FOR RELEASES
9.1 The Company shall obtain all Releases, licenses, Permits or other authorisation to
use testimonials, copyrighted materials, photographs, artwork or any other property
or rights belonging to third parties (If applicable or otherwise agreed).
9.1.1 The applicability of Clause 9.1. shall be subject to the Client notifying the
Company in writing that such Release, license or permit will be required.
9.1.2 Should the Client fail to notify the Company of the requirement for the items
as set out in Clause 9.1.1.; the Company shall bear no liability for any loss
incurred whatsoever, as a result of the use of testimonials, copyrighted
materials, photographs, artwork or any other property or rights belonging to
third parties and the liability for such loss shall be borne by the Client.
10 LICENSING AGREEMENT OR USAGE
10.1 The Client guarantees that all elements of text, images, or other artwork provided
are either owned by Client, or that the Client has permission to use them unless
otherwise indicated by the Client in terms of Clause 9. Once final payment has
reflects in the Company’s bank account, copyright will be automatically assigned
10.1.1 The Client will own the visual elements created for this Project as well the
unique combination of all the elements that constitutes a completed Project
and can be licensed to the Client for international usage, unless agreed
otherwise between the parties in writing.
10.1.2 For commercial and international usage a separate license agreement will
be drafted at an additional cost. The Company can supply finished files on
request within 30 days of Project completion, thereafter it is the Client’s
responsibility to keep media backups.
10.1.3 There shall be no annual general usage fee in respect of local usage,
however should any external/ third party require that usage fee be charged
for the use of any material owned by such external/ third party; the Client
shall bear the costs of such usage fee and shall be invoiced by the Company
in the normal course for such usage fee.
10.1.4 Original Project or raw footage files are only handed over at an agreed
additional cost, unless otherwise agreed between the parties in writing.
11.1 The Company hereby agrees to maintain the Confidential nature of all matters
relating to the Project. The Company agrees not to make or authorize any news
stories, blogs, vlogs, articles, books or other publicity, including posting of any
content on any social media sites, relating directly or indirectly to this
Agreement, the Company’s engagement hereunder, the subject matter hereof,
or the Project.
11.2 The Company understands that it is an essential condition that Confidential
information be maintained in the strictest confidence. Accordingly, the
Company agrees that unless and until the Company is expressly authorized in
writing to do so by the Client or its authorized representative(s), the Company
shall (and if the undersigned has any employees, shall require such employees
11.2.1 keep all Confidential information (whether relating to any services
performed by the undersigned or otherwise learned by the undersigned)
in strictest confidence;
11.2.2 not reproduce or duplicate any Confidential information (unless required
to render services and then only the minimum so required);
11.2.3 return any Confidential information in the undersigned’s possession (and
erase any Confidential information duplicated to the Company’s hard
drive or digitally stored and provide certification of such actions) upon
request therefor by the Client;
11.2.4 not disclose, report, reveal, gossip or speculate about, assign, sell or
transfer, either directly or indirectly, factually or by means of
fictionalization, by any means including without limitation by e-mail,
social media, blogging or tweeting, any Confidential information to any
person with the exception of other persons performing services on the
Project, but then only if and to the extent necessary in order for them to
perform such services or evaluate a possible transaction.
11.3 As used herein, Confidential information means ALL information or material
relating to the Client or Project, which the Company (or the Company’
employees or colleagues) may obtain knowledge of or access to whether as a
result of the Company’ contract and/or relationship with the Client or otherwise.
The Confidential information includes, without limitation, the following types of
information and other information of a similar nature (whether tangible or
intangible and whether or not reduced to a writing):
11.3.1any and all information relating to the Company’s services (if any) and/or
the Project and its production and exploitation, including without
limitation any and all information relating to the screenplay, story lines,
characters and/or locations contained therein, budget, schedule, plans
(including any information regarding cast members or crew engaged or
being considered for engagement), drawings, designs, specifications,
ideas, concepts, models, costumes, techniques or special effects for the
Project or other creative, business and/or physical production elements
relating to the Project; and/or
11.3.2any information relating to the operation, financial affairs or business of
the Client and/or its executives, including without limitation patentable
or other intellectual properties owned or used by the Client. For the
avoidance of doubt, if:
184.108.40.206 The Client disseminates or authorizes the dissemination of any
Confidential Information; or
220.127.116.11. approves in writing the dissemination of any Confidential
Information, then the applicable Confidential Information shall
no longer be subject to this Clause 9.
12 PERIOD OF AGREEMENT AND NOTICE OF TERMINATION
12.1 This Agreement shall become effective as of date stipulated on the proposal,
Quotation or in writing and shall continue until terminated by either party upon not
less than 60 days’ notice in writing given by either party to the other.
13 FAILURE TO PERFORM
11.1. Subject to Clauses 4, 5, 7 and 8 should either party fail to fulfil its obligations in
terms of this Agreement as a result of:
13.1.1 any act of God, war, strike, lockout or other labour dispute, fire, terrorism,
urban terror, flood or legislation; or
13.1.2 any other cause beyond the reasonable control of the party concerned, then
notwithstanding anything to the contrary contained or implied in this
13.2 the other party shall not be entitled to terminate this Agreement prematurely, nor
shall it have any claim for damages in whatsoever nature against the party
14 DISPUTE RESOLUTION
14.1 The Parties agree that the terms of this Agreement will be performed in the spirit
of mutual co-operation, trust and confidence. The Parties further agree to use their
reasonable endeavours to resolve, through mutual consultation, without involving
any third party or parties, any dispute which may arise under, out of, or in
connection with or in relation to this Agreement. If following such mutual
consultation, the dispute still remains unresolved, the matter shall be referred to 1
(one) representative of each of the Parties, who shall negotiate for a period of up
to 5 (five) Business Days from the date of such referral in an attempt to resolve
such dispute. If, following the expiry of such 5 (five) Business Day period, the
dispute is still unresolved, then, save where otherwise provided in this Agreement,
the matter shall be referred to arbitration in accordance with the remaining
provisions of this clause 14.
14.2 This clause 14 is a separate, divisible Agreement from the rest of this Agreement
14.2.1 Not be or become void, voidable or unenforceable by reason only of any
alleged misrepresentation, mistake, duress, undue influence, impossibility
(initial or supervening), illegality, immorality, absence of consensus, lack of
authority or other cause relating in substance to the rest of the Agreement
and not to this clause 14, which issue, the Parties agreed, shall be subject
to arbitration in terms of this clause 14; and
14.2.2 remain in effect even if the Agreement is terminated or is cancelled.
14.3 Save in respect of those provisions of this Agreement which provide for their own
remedies which would be incompatible with arbitration, any dispute arising out of
or in connection with this Agreement or the subject matter of this Agreement
including, without limitation, any dispute concerning:
14.3.1 the existence of this Agreement apart from this clause 14;
14.3.2 the interpretation and effect of this Agreement;
14.3.3 the Parties’ respective rights or obligations under this Agreement;
14.3.4 the rectification of this Agreement;
14.3.5 the breach, termination or cancellation of this Agreement or any matter
arising out of such breach, termination or cancellation;
14.3.6 damages in contract, in delict, compensation for unjust enrichment; or
14.3.7 any other claim whether or not the rest of this Agreement apart from this
clause 14 is valid and enforceable,
14.3.8 shall be decided by arbitration as set out in this clause 14.
14.4 The Parties to this dispute shall agree on the arbitrator. If Agreement is not reached
within 5 (five) Business Days after any Party to the dispute in writing calls for
Arbitration, the arbitrator shall be:
14.4.1 if the dispute relates primarily to a financial matter, a practicing chartered
accountant of at least 15 (fifteen) years’ standing nominated by the
Chairman for the time being of the South African Institute of Chartered
Accountants at the request of either Party; or
14.4.2 if the dispute relates to any other matter, a practising commercial attorney
or advocate of at least 15 (fifteen) years’ standing on the panel of arbitrators
of the Arbitration Foundation of Southern Africa (“AFSA”) or such other
institution of similar standing as the Parties may agree, nominated at the
request of any Party to the dispute by the Registrar of AFSA or such other
institution (if applicable), for the time being. This provision will also apply
where the Parties are unable to agree on whether the dispute relates to a
financial or other matter;
14.5 The request to nominate an arbitrator shall be in writing outlining the claim and any
counterclaim of which the Party to the dispute concerned is aware and, if desired,
suggesting suitable nominees for appointment, and a copy shall be furnished to the
other Parties to the dispute who may, within 5 (five) Business Days, submit written
comments on the request to the addressor of the request.
14.6 The arbitration shall be held in Cape Town and the Parties shall endeavour to
ensure that it is completed within 90 (ninety) Business Days after notice requiring
the claim to be referred to arbitration is given.
14.7 The proceedings in the arbitration shall as far as practicable take place in private
and be kept Confidential.
14.8 The arbitration shall be governed by the Arbitration Act, No. 42 of 1965 and shall
take place in accordance with the Commercial Arbitration Rules of AFSA.
14.9 An order or award made by the arbitrator shall be carried into effect and shall be
final and binding upon the Parties and may be made an order of court of competent
14.10 This clause 14 shall not preclude any Party to a dispute from obtaining interim relief
on an urgent basis from a court of competent jurisdiction pending the decision of
the arbitrator or panel of arbitrators, on appeal.
14.11 Notice of a dispute or pending arbitration proceedings shall not entitle any Party to
suspend compliance with any of its obligations in terms of this Agreement or any
Agreement contemplated in this Agreement.
14.12 The Parties agree that a written demand by any Party that a dispute be submitted
for resolution in terms of this clause 14 is deemed to be a legal process for the
purpose of interrupting extinctive prescription in terms of the Prescription Act 68 of
15 NO REPRESENTATIONS AND NON-WAIVER
15.1 A Party may not rely on any representation which allegedly induced that Party to
enter into this Agreement, unless the representation is recorded in this Agreement.
15.2 The failure by any of the Parties to enforce any provision of this Agreement shall
not affect in any way that Party’s right to require performance of the provision at
any time in the future, nor shall the waiver of any subsequent breach nullify the
effectiveness of the provision itself.
16.1 Any legal process to be served on any of the Parties may be served on it at the
address specified on the face of this Agreement and it chooses that address as its
domicilium citandi et executandi for all purpose under this Agreement.
16.2 Any Party is entitled to change its domicilium to another street address within South
Africa by written notice to the other Party. Such change of domicilium will take effect
upon receipt of notice in writing by the addressee of such change.
16.3 Any notice or other communication to be given to any Parties in terms of this
Agreement shall be valid and effective only if it is given in writing, provided that any
notice given by email or telefax shall be regarded for this purpose as having been
given in writing.
16.4 All notices in terms of this Agreement may be delivered by hand at the domicilium
citandi et executandi of the addressee (in which case it will be deemed to have
been received when delivered) or by email or any other electronic means (in which
case it will be deemed to have been received on the day of dispatch). Such receipt
is deemed notwithstanding that neither the addressee nor any other person is
present at such address at the time.
16.5 Notwithstanding anything to the contrary herein contained, a written notice actually
received by a party will be adequate written notice to it, notwithstanding that it was
not delivered as envisaged herein.
17.1 No Party may cede any or all of that Party’s rights or delegate any or all of that
Party’s obligations under this Agreement without the prior written consent of the
18.1 If any part of this Agreement is void, illegal, unenforceable, or in conflict with any
law of the state or local Government over this Agreement, the validity of the
remaining portions or provisions shall not be affected thereby.
19 WARRANTIES ON CAPACITY
19.1 Each Party warrants that:
19.1.1 It has the legal capacity and has taken all necessary corporate action
required (where applicable) to empower and authorise it to enter into and
implement this Agreement on the terms and conditions herein set out.
19.1.2 This Agreement constitutes an Agreement valid and binding on it and
enforceable against it in accordance with its terms.