Terms and Conditions
TERMS OF BUSINESS DC PRODUCTIONS
In these Conditions:
CLIENT means the person or persons who accept(s) the services offered from the Company for the provision or contract to themselves or their business or their employees or whose booking for the services rendered is accepted by the Company;
COMPANY means Flax Films cc CK 98/23729/23 t/a DC Productions a company registered in terms of the Companies Act 71 of 2008 the Republic of South Africa as amended.
COPYRIGHT means the Copyright Act No. 98 of 1978 of South Africa, as amended.
SERVICES means the services that the Company is contracted to supply in accordance with these conditions encompassing its’ employees and/or subcontractors;
CONTRACT means any contract concluded between the company and a Client on these conditions:
Words and expressions which denote:
1.1 any gender includes the other genders
1.2 a natural person includes an artificial person and vice versa:
1.3 the singular includes the plural and vice versa.
1.4 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time;
CONDITIONS means the standard Terms and Conditions of sale and supply set out in this document, and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Client and the Company.
CREW means a cameraman, video crew or television crew comprising any number of people from an individual cameraman to a number of specified people who are trained in the production of television production;
PRODUCTION means any pre-production, filming, editing, use of video or photo stock necessary required in post production process having been initiated by the company, its’ employees and/or subcontractors that may have been partially or fully completed in the creation of the video in for the Client in accordance with strictly limited to the extent of the contract.
WORKING DAY are based on the assumption that all work will be carried out during the company's ordinary working hours, with a set duration and the number of days agreed in writing between the Client and the Company. A working day includes travel, in train car or aeroplane. There are half-day rates based on 4 (four) consecutive hours. Full day rate being a maximum of 8 (eight) consecutive hours.
OVERTIME | WEEKEND | PUBLIC HOLIDAY Any work undertaken outside of standard working hours (being 8-17h00 Monday to Friday) shall be charged at double the amount quoted pro rate not limited to any disbursements that are made in respect of the employment any subcontractors. All employees are subject to the provisions of the Basic Conditions of Employment Act, Act No. 75 of 1997.
NIGHT SHOOTS AND EDITING is the anticipated wrap time at time of booking.
INTEREST means interest calculated at prime overdraft rate plus 2% charged by and as certified by the company's bankers from time to time on outstanding balances calculated 30 days from the day of the Company’s invoice is submitted to the Client;
VAT The Company is registered as Value Added Tax (VAT) vendor (4830180271) and charges VAT at prevailing rate as legislated and determined by the Minister.
These terms and conditions apply to both follow-up orders and to ongoing business relationships.
On completion of the services, the Company will present and invoice the client detailing the work done, and the Client must pay the price as specified on the face of the invoice prior to removal of any goods from Company premises, unless it is alternatively agreed upon with Company and reduced to in writing.
The head notes to the clauses of these conditions are inserted for reference purposes only and shall in no way govern or affect the interpretation hereof.
2 PROVISIONS OF SERVICES
2.1 GENERAL - These conditions govern all quotations and invoices issued by the company, contracts and sub-contracts entered into by the company and orders received by the company. Any conditions stipulated by a client which are in conflict with these conditions are excluded from the contract. These conditions shall prevail over and supersede all terms and conditions whether written or implied which the client may seek to incorporate in the contract in whatsoever manner.
2.2 VALIDITY - Subject to availability of services to be rendered quotations are open for acceptance during the period stated therein, or where no period is stated within 30 (thirty) days after the date of such quotation.
2.3 DEFAULT Should the client default in paying any sum due for services rendered or any goods supplied, the company shall be entitled, in its sole and absolute discretion, to suspend all further production or deliveries until the default has been made good or to cancel the balance of the order. In either event, the Client will be liable to pay the company on demand either the cost of the goods In the course of manufacture or the price of goods ready for despatch.
2.4 The Company shall provide the Services (and/or fulfil the Contract) in accordance with any written quotation (or oral booking confirmed in writing or by email or fax) of the Company, which is accepted by the Client, subject in either case by these Conditions;
2.4 The Company is not obligated to provide Services unless and until the Company has received such written confirmation;
2.5 INCREASE IN CONTRACT PRICE - The Company shall be entitled to increase the contract price by a sum of money sufficient to cover any additional costs incurred or sustained by the company as a direct or indirect consequence if the Client requiring any variation in the work to be performed or suspending delivery of the goods by the company.
2.6 The Client shall not further assign the Company’s services to a third party, or instruct the Company’s employees or representatives to engage on work for any other project, or film, television, record, or photograph any scene or incident which is not relevant to said assignment for which the Services were originally contracted without prior notice to the Company in writing, or by fax or email, not less than 24 hours prior to the proposed commencement of the assignment, whereupon the Company will renegotiate with the Client and agree on suitable fees before the assignment is undertaken. This must be reduced to in writing. Failure to do so will render the booking for the services invalid, whereupon the fees in respect thereof shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary;
2.7 In the event of the Client cancelling a booking that the Client previously confirmed in writing or by fax email or by telephone, the Client shall be liable to pay the Company a cancellation fee. This is based upon whether or not the Company has already turned down other work as a result of the Client’s prior booking, the Company reserves the right to charge a cancellation fee 100% of the fee agreed for the original booking within 48 hours, 75% within 72 hours, 50% within 96 hours of the shoot / edit;
2.8 Hours worked in excess of 8 hours per day (from base), will be liable to an additional hourly charge at published rates. All hours worked in excess of 8 hours per day subject to the provisions of the Basic Conditions of Employment Act, Act No. 75 of 1997, are at the discretion of the Crew, unless otherwise agreed with the Company in writing, or by fax or email, at the time of the original booking of the provision of Services;
2.9 The Client shall provide the Crew with a break of one hour at the end of each period of 5 hours worked. Whenever such a break is not provided, the Company shall be entitled to charge for any work during such a period over and above the fee agreed for the provision of Services;
2.10 The Client shall provide the Crew with a minimum break of ten hours between the end of one day’s work, and commencement of work the following day. Travelling time between the location and the Crew’s accommodation is included in a working day period. Whenever such a break is not provided, the Company shall be entitled to charge for any work during such a period over and above the fee agreed for the provision of services;
2.11 The Company will provide memory stock if required by the Client for the Clients account. If the Client wishes to utilise their own stock, then the Company cannot furnish any guarantee of recording quality using the Client’s stock. Reused stock is used strictly at the Client’s risk and the Client shall be liable should that stock cause damage to the Company’s equipment;
2.12 Other incidental expenses incurred and funded by the Crew (eg parking, taxi fares, meals, road tolls or any other disbursement etc) shall be charged to the Client, unless other provision is made at the time of booking and /or agreeing the contract;
2.13 No variation, modification or waiver of any provision of these conditions, or consent to any departure there from, shall be binding unless agreed and reduced to writing between the authorised representatives of the Client and the Company, and then such variation, modification, waiver or consent shall be effective only in the specific instance and for the purpose and to the extent for which made or given.
2.14 with the provisions of long distance travel the Client will book company in business class or better for all flights over 5 hours. Failure to make this booking will result in a charge of an additional 200% of the agreed daily rate including overtime for the said journey at each sector, outward and inward journey.
2.15 It is the responsibility of the Client to arrange and pay for the provisions of excess baggage, failure to do so could result in the company not being able to travel;
2.16 When travelling it is the responsibility of the Client to provide the Company and it crew with a per diem and float for costs incurred during travel;
2.17 Cancellations, and confirmation the Client will give the company due notice in order of cancellation. Failure to confirm a booking will result in the company accepting work from another Client. Failure to give due notice of any cancellation may render the Client liable to charges of the said booking as per 2.4 above.
2.18 NIGHT SHOOTS - It is the responsibility of production to inform the crew of a possible night shoot at time of booking. If production plans to shoot past midnight, crew must be informed.
2.19 TRAVEL DAYS - If the travel day is booked as a five (5) hour travel day, anything over the five (5) hours must be reflected in two (2x) times the basic hourly rate. If the travel day is booked as a ten (10) hour travel day, anything over the ten (10) hours must be reflected in one and a half (1.5x) times the rate. The day will be determined on a Lobby (leaving from the hotel/motel etc.) to Lobby (returning to the hotel/motel etc.) basis. Lobby to Lobby applies to the entire crew and is not limited to the crewmembers that have been provided transportation by Production. Travel time shall be calculated in 15 minute increments. The "Crew Liaison" and "Production Manager" will discuss and agree on length of travel time.
2.20 POSTPONEMENT - To avoid penalties, the production Company must postpone a crewmember, employee or subcontractor call no later than forty-eight (48) hours prior to the proposed shoot day. If a crewmember, who has been booked, is not available for the newly proposed shoot date(s) then that crewmember must be paid for one ten (10) hour day. Production can only postpone one (1) time in any given shoot period. Any additional postponement on that project would result in complete payment for the crew already booked on that project.
2.21 Viz major, strikes, lock-outs, differences in workmen, damage to or failure of equipment, acts of government or quasi government or legislation, or other contingencies beyond the control of Company, shall be sufficient justification for any delay or suspension of delivery. In such an event, the Client shall not have a claim of cancellation of the contract and the Company shall deliver as soon as is practically possible.
3.1 The Company provides insurance cover for its equipment subject to the following conditions.
3.1.1 The Client shall be liable for the equipment policy excess (R10,000.00) in the event of a claim arising through direct involvement of any person/s other than the Company’s employees or their representatives.
3.1.2 the Client will be responsible for all travel and production insurance for the company and it representatives. Proof of this insurance policy MUST be presented, in writing, at least 96 hours before the proposed commencement time of the provision of Services to the Company or their representatives.
3.1.3 The Client shall be fully liable in the event of a claim arising through loss, theft, or damage to the Company’s equipment if said loss, theft, or damage occurred as a result of the Client’s employees or representatives causing the equipment to be in an uninsured condition.
3.1.4 Provision of the Services which invalidates the Company’s employees’, or their representatives’, personal insurance policies (eg filming in a war zone, flying other than a fare-paying passenger on a scheduled airline, etc) may not be undertaken without the provision by the Client of a personal accident insurance for each of the Company’s employees, or their representatives, to the value of AT LEAST R20,000,000-00 per person. Proof of this insurance policy MUST be presented, in writing, at least 96 hours before the proposed commencement time of the provision of Services to the Company or their representatives.
3.1.5 Failure to disclose any hazards which thus invalidate the personal insurance policies of the Company’s employees, or their representatives, prior to the provision of Services, will render the booking for said Services invalid, whereupon the fees in respect thereof shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
3.2 The cover of equipment and employer liability extends to world wide where work is required.
4 TERMS OF PAYMENT
4.1 The Client shall pay to the Company fees at the rate agreed in writing between the Client and the Company.
4.2 The Client will, on demand, reimburse the Company for all authorised and/or reasonable expenditure incurred by the Company or its representatives in connection with the provision of Services or Contract.
4.3 All payments to the Company shall be made against the Company’s invoice(s) that shall be presented at the end of each period of the provision of Services or on completion of the designated milestones in respect of the Contract.
4.4 The Client shall make all payments within 7 calendar days from the date of the Company’s invoice or as stated on the invoice.
4.5 The Client shall make all payments in South African Rand by cash or bank transfer to the account of the Company at a bank nominated by the Company.
4.6 If and whenever the Client shall fail to make such payments within the said 7 calendar days period, overdue accounts will bear interest at prime overdraft rate plus 2% charged by and as certified by the company's bankers from time to time and shall be paid by the Client on demand.
4.7 Also, in the event of payments not being received within the said 7 calendar days period, any quotation for Services or Contract in force between the Client and the Company shall be deemed to be invalidated, and the terms and conditions appertaining to said Services or Contract shall no longer apply, but be open to re-negotiation.
4.8 The company reserves the right to set terms of 50% up front for any Clients, or those it deems necessary in order to engage the service of the Client. The remainder is payable at completion of the project. With the transaction of camera rushes. Failure to do so could result in delay of beginning of production.
4.9 Should the Client’s bank be outside South Africa, the Client is responsible for all transaction fees incurred when making reimbursement to the company. The foreign Client will reimburse the company 50% of the quoted price up front and prior to the commencement of any production-taking place.
4.10 No goods shall leave the Company until all moneys due and payable have been reflected in the companies bank account.
4.11 If any account is handed over to the company's attorneys for collection, the client will be liable for collection charges, tracing fees and all legal costs (both party and party and attorney and client costs) even though action may not have been instituted.
4.12 The client waives all rights of set-off against the company, and the Client shall not be entitled to make any deductions whatsoever from payments due.
5.1 Not withstanding the delivery of goods to the Client, or their authorised representatives, of any script, graphic, ideas, video disc, audio disc, computer disc or other related materials (whether subject to copyright or not) appertaining to the provision of Services or Contract, or any other provision of these Conditions, the property in such script, graphic, ideas, photographic material, video disc, audio disc, computer disc or other related materials shall not pass to the Client until the Company has received in cash, or cleared funds, payment in full of all outstanding invoices in respect thereof.
5.2 The Company shall retain copyright of the property delivered to the Client within the provision of Services or contract that only relate to the project for which said script, graphic, photographic material, video disc, audio disc, computer disc or other related materials were commissioned or transmitted by whatever means to the Client or to any designated Third Party. The said script, graphic, photographic material, video disc, audio disc, computer disc or other related materials may not be assigned to a third party, in full or in part, nor may they be used in conjunction with other materials and/or for a separate project or projects, in full or in part, at any time without written permission from the Company, which may also entail further fees and or royalties to be paid the Company.
5.3 Until such time as the property in such script, graphic, ideas, photographic material, video tape, video disc, audio disc, computer disc, or other related materials passes to the Client, the Company shall be entitled, at any time, to require the Client to deliver up such script, graphic, ideas, photographic material, video disc, audio disc, computer disc or other related materials to the Company and, if the Client fails to do so forthwith, to enter upon any premises of the Client, or any Third Party, where such script, graphic, ideas, photographic material, video disc, audio disc, computer disc or other related materials are stored and repossess them.
5.4 The Company will supply recorded images to the Client on the condition that at any time for self-promotion purposes the company will have unrestricted access to the supplied images.
5.5 Payments received for such script, graphic, ideas, photographic material, video disc, audio disc, computer disc or other related materials which are delivered to the Client within the provision of Services or contract only relate to the project for which said script, graphic, photographic material, video disc, audio disc, computer disc or other related materials were commissioned. The said script, graphic, photographic material, video disc, audio disc, computer disc or other related materials may not be assigned to a Third Party, in full or in part, nor may they be used in conjunction with other materials and/or for a separate project or projects, in full or in part, at any time without written permission from the Company, which may also entail further fees and or royalties to be paid to be the Company.
6. PATENTS - The company will indemnify the client against any claims or proceedings for or on account of infringement of any letters patent, registered design, trade mark or copyright protected at the data of contract in the Republic of South Africa by the use or sale of any article or materials supplied by the company to the Client provided that:
6.1 this indemnity shall not cover any infringement which is due to the company having followed a design or instruction furnished or given by the Client.
6.2 This indemnity is conditional upon the Client giving the company the earliest possible notice in writing of any claim being made or action threatened or brought against the Client and on the client permitting the company, at the company's own expense, to conduct all negotiations for a settlement of the same and any litigation which may ensue.
6.3 The client on its part warrants that any design or instruction furnished or given by it shall not be such as will cause the company to infringe any letters patent, registered design, trade mark or copyright in the performance of the contract.
7. OWNERSHIP AND COPYRIGHT - The ownership, together with the copyright therein, of all plans, drawings diagrams, descriptions and other information, jigs, tools, templates and patterns submitted by the Company or used in the production of the goods shall remain vested in the Company or its principles and no copies thereof shall be made without the company's prior written consent.
8. JURISDICTION - The Client hereby agrees and consents that the company shall be entitled, at the company 's election, to institute any legal proceedings which may arise out of or in connection with these conditions in any Magistrates Court in the Republic of South Africa having jurisdiction over the Clients' person, notwithstanding that the claim or the value of the matter in dispute might exceed the jurisdiction of such Magistrates' Court. The foregoing shall not preclude the company from instituting such proceedings in any division of the High Court of South Africa having jurisdiction.
9. LEGAL CONSTRUCTION AND GOVERNING LAW - Should one or more of these conditions be invalid or unenforceable for any reason the remaining conditions shall remain in full force and effect. Any contract for the supply services and/or goods by the company shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
10. WAIVER - Waiver by the company of any breach by the Client shall not prejudice the company in respect of any continuing or other breach. No delay or indulgence by the company in exercising any right hereunder shall operate as a waiver of such right and no such waiver shall be operative against the company's duly authorised official
11. NOTICES - Any notice required to be given by either party to the other hereunder shall be considered properly given if sent (by registered letter, facsimile or e-mail ) to the respective business address of the other party or to such other address as the addressee shall have furnished in writing to the addressor. When these conditions require that a notice be given within a specified period, such notice, to be valid, must reach the party to whom it is addressed within that period.