TERMS AND CONDITIONS
1. Definitions and interpretation
1.1 In these Terms and Conditions, unless otherwise specified or the context clearly indicates the contrary, the following words and expressions shall have the meanings assigned to them below:
1.1.1 “Agreement” : means these Terms and Conditions and the Cost Estimate;
1.1.2 “Business Day” : means any day excluding a Saturday, Sunday or public holiday in the Republic of South Africa;
1.1.3 “the Client” : means the client as more fully described in the Cost Estimate;
1.1.4 “Contract Amount” : means the amount of money, expressed in South African Rand, payable by the Client to Handmade Media for the Services as recorded in the Cost Estimate;
1.1.5 “Cost Estimate” : means the document setting out, amongst others, the particulars of the Client, the Services, the Location and the Contract Amount;
1.1.6 “CPA” : means the Consumer Protection Act (Act 68 of 2008) as amended, together with all regulations promulgated thereunder from time to time;
1.1.7 “Equipment” : means any equipment and goods required for the rendering of the Services (or any part thereof) and the creation of the Final Product, including but not limited to cameras, camera equipment, props, gear and clothing;
1.1.8 “Final Product” : means the final product/deliverable to be created by Handmade Media through the rendering of the Services, as recorded in the Project Scope;
1.1.9 “Handmade Media” : means Handmade Media (Pty) Ltd (registration number: 2016/505214/07), a private company duly registered and incorporated in the Republic of South Africa;
1.1.10 “Intellectual Property” : means all present and future intellectual property rights in the Final Product, including but not limited to patents, registered designs, know-how, trade-marks, copyright and all rights having equivalent or similar effect;
1.1.11 “Location” : means the physical address/location where the Services will be rendered by Handmade Media, as recorded in the Cost Estimation;
1.1.12 “Parties” : means Handmade Media and the Client and any reference to “Party” shall refer to any one of the Parties;
1.1.13 “Post Production” : means the last phase of the Services to be rendered to the Client (where applicable), as recorded on the Cost Estimate, which could include data logging & backup, editing, motion graphics, audio mastering, colour grading, compression and DVD authoring;
1.1.14 “Pre-Production” : means the first phase of the Services to be rendered to the Client (where applicable), as recorded on the Cost Estimate, which could include research, product study, creative design and presentation and copywriting;
1.1.15 “Production” : means the central phase of the Services to be rendered to the Client (where applicable), as recorded on the Cost Estimate;
1.1.16 “Project Scope” : means a detailed description of the nature and scope of the product/deliverable that Handmade Media is contracted to provide to the Client;
1.1.17 “Release(s)” : means a document in terms whereof Handmade Media obtains the right to use any property or Intellectual Property Rights recorded in the said document and in terms whereof Handmade Media is released from and indemnified against all and any liabilities towards the owners of the recorded property or Intellectual Property Rights;
1.1.18 “Services” : means the Pre-Production, Production and Post-Production videography and/or photography services to be rendered by Handmade Media to the Client, the detailed particulars of which are recorded in the Cost Estimate;
1.1.19 “Talent” : means any persons required by Handmade Media for the rendering of the Services (or any part thereof) and the creation of the Final Product, including but not limited to models, actors/actresses, make-up artists and hair stylists.
1. Cost estimation
1.1 Unless otherwise agreed to between the Client and Handmade Media, the introductory consultation between the Client and Handmade Media shall be free of charge.
1.2 After the initial consultation, Handmade Media shall furnish the Client with a Cost Estimate, setting out detailed particulars of the proposed Services to be rendered and estimated Contract Price.
1.3 The Cost Estimate with the costing for the Services and Final Product shall remain open for acceptance by the Client for a period of 14 (Fourteen) Business Days from the date of receipt of the Cost Estimate by the Client.
1.4 The Client shall indicate its intention to enter into a legally binding agreement with Handmade Media by signing and dating the Cost Estimate and the Terms and Conditions and furnishing Handmade Media with the signed document.
1.5 The Terms and Conditions and the signed Cost Estimate shall represent a legally binding agreement between Handmade Media and the Client. A Client that accepts the performance of any Services or delivery of the Final Product by Handmade Media shall be bound to the provisions of these Terms and Conditions as if he/she/it has signed these Terms and Conditions and the Cost Estimate.
1.6 Notwithstanding the provisions of the Cost Estimate, the Contract Price in respect of the Services and/or Final Product may be increased by Handmade Media at any time, prior to the delivery of the Final Product or performance of the Services, in the event of:
1.6.1 a change in the Project Scope or Services;
1.6.2 where the costs of Talent and/or Equipment have increased since the date of acceptance of the Cost Estimate;
1.6.3 overtime to be worked by any persons involved in the rendering of the Services. All Service fees are billed on a 10 (Ten) hour working day and any hours of work (or part thereof) in excess of the 10 (Ten) hour working day will constitute overtime which will be separately billed to the Client at the overtime rate recorded in the Cost Estimate.
1.6.4 where there has been any exchange rate fluctuations that influence the price of Services, Talent or Equipment.
1.7 An increase in prices will be communicated to the Client within a reasonable period of time.
2. Duties of Handmade Media
2.1 Handmade Media shall be responsible to –
2.1.1 render the Services in accordance with the provisions as set out in the Cost Estimate; and
2.1.2 provide the Client with the Final Product on the agreed delivery date.
Handmade Media shall only commence with the Services upon receipt of the deposit referred to in Clause 5.1.1 and upon receipt of the duly signed Cost Estimate and Terms and Conditions referred to in Clause 2.4 (“the Commencement Date”).
4. Payment terms
4.1 Unless otherwise agreed to between Handmade Media and the Client in the Cost Estimate –
4.1.1 a deposit of 50% (Fifty Percent) of the Contract Amount shall be payable upon signing of the Cost Estimate and the Terms and Conditions;
4.1.2 25% (Twenty Five Percent) of the Contract Amount shall be payable within 7 (Seven) calendar days after the Production; and
4.1.3 25% (Twenty Five Percent) of the Contract Amount shall be payable upon delivery of the Final Product.
4.2 Handmade Media shall furnish the Client with invoices for payment of the deposit and further payments as set out in Clause 5.1 and shall become payable upon rendering of each invoice.
4.3 Handmade Media shall be entitled to suspend all Services and to withhold delivery of the Final Product until all payments that are due and payable have been paid by the Client.
4.4 All payments due to Handmade Media shall be made without deduction or set-off, in South African Rand, free from banking charges, by means of electronic funds transfer into the nominated banking account of Handmade Media as set out in its invoices.
4.5 Any outstanding amount that has become due and payable and which remains unpaid, shall bear interest at a rate of 2% (Two Percent) per month, calculated from the date that payment became due to the date of payment, both days inclusive.
4.6 The Client shall be responsible for payment of all taxes or levies due as a result of a requirement by any governmental organisation, including but not limited to value added tax, importation tax and withholding tax.
5. Duties of client
5.1 The Client shall be responsible to:
5.1.1 Promptly make payment of the Contract Amount as and when payment becomes due;
5.1.2 Provide Handmade Media with all information, documentation, logos and any other material or input required by Handmade Media to perform the Services;
5.1.3 Provide Handmade Media with a detailed Project Scope; and
5.1.4 Attend any meetings required by Handmade Media to review and approve the Services and/or Final Product.
6. Changes to project scope
6.1 In the event that the Client wishes to change the Project Scope or Services as specified in the Cost Estimate, the Client shall follow the following process:
6.1.1 the Client shall compile and submit a written document to Handmade Media, setting out comprehensive particulars of the changes requested;
6.1.2 Handmade Media shall consider the change request document and furnish the Client with a revised Cost Estimate;
6.1.3 If the revised Cost Estimate is accepted by the Client, the Client shall date and sign the revised Cost Estimate, which shall then replace the initial Cost Estimate and form a legally binding agreement between the Client and Handmade Media;
6.1.4 In the event that the Cost Estimate exceeds the initial Cost Estimate, the Client shall be liable to immediately make payment of the additional deposit amount as stipulated on the revised Cost Estimate. Handmade Media reserves the right to suspend the rendering of any further Services until receipt of payment of the additional deposit amount.
7. Additional work
7.1 Additional Services to be performed by Handmade Media other than as contemplated in the Cost Estimate shall be quoted separately from the Cost Estimate in an addendum thereto.
7.2 The Client shall indicate its intention to enter into a legally binding agreement with Handmade Media for additional products or Services by signing and dating the addendum to the Cost Estimate.
8. Adjustment of timelines
8.1 Dates for the performance of the Services and delivery of the Final Product are agreed to in advance by the Client and Handmade Made, as recorded in the Cost Estimate.
8.2 Any adjustment of timelines for the performance of the Services and delivery of the Final Product shall only be made by mutual agreement between the Parties, reduced to writing and signed by both Parties.
9. Production process
9.1 For video productions, unless otherwise agreed to with the Client in the Cost Estimate, the following production process will be followed in rendering the Services:
9.1.1 Pre-production meeting and brief;
9.1.2 Concept development and approval;
9.1.4 Editing of the first draft;
9.1.5 First viewing;
9.1.6 Alterations (no changes to the Project Scope);
9.1.7 Final viewing;
9.1.8 Minor alterations, if needed;
9.1.9 Final delivery.
10. Early cancellation
10.1 Should the Client wish to cancel its agreement for the rendering of Services and delivery of the Final Product at any stage after the Commencement Date, or any act or omission on the part of the Client results in the cancellation of the Production or of the Agreement, then the following shall apply:
10.1.1 Handmade Media shall be entitled to –
10.1.1.1 retain the full amount paid as deposit;
10.1.1.2 payment of such portion of the Contract Amount for Services already rendered over and above the deposit amount; and
10.1.1.3 all costs and disbursements of Talent and Equipment already booked, rented or incurred by Handmade Media.
11.1 Save for any warranties of quality automatically accrued in terms of the Consumer Protection Act 68 of 2008 (where applicable), Handmade Media disclaims all other warranties, express or implied, including the implied warranties of merchantability and fitness for a particular purpose.
11.2 Any faults or defects in the Services or Final Product discovered by the Client, which render the Services or Final Product entirely outside the Project Scope, shall be corrected by Handmade Media at no charge to the Client within a reasonable time and as quickly as possible, provided that the faults or defects are not directly attributable to the actions or omissions of the Client.
12. Intellectual property rights
12.1 Ownership of all rights, including Intellectual Property Rights, in and to the Services (or any portion thereof, including ideas and concepts), as well as in and to the Final Product, will be vested in Handmade Media until full payment of the entire Contract Amount has been received, at which stage all of the said rights shall be transferred to the Client.
12.2 The use of the Final Product shall be subject to such third party rights (where applicable) and regulations and statutes as applicable in the country of use and it shall be the sole and exclusive responsibility of the Client to identity and to comply with all such third party rights, regulations and statutes.
12.3 The Client warrants that it holds the appropriate Intellectual Property Rights and licenses (where applicable) in respect of all information, documentation, specifications, logos, music (lyrics and songs), multi-media or any other material or data submitted to Handmade Media and indemnifies and holds Handmade Media harmless against any claims by any third party where the necessary Intellectual Property Rights permission or licenses (where applicable) was not obtained by the Client or was infringed by the Client.
12.4 To the extent that the Client does not have the appropriate Intellectual Property Rights and licenses required for the rendering of the Services and/or the creation of the Final Product, Handmade Media shall not be obligated to proceed with the instruction until such Intellectual Property Rights and/or licenses have been obtained by the Client and Handmade Media shall have no obligation whatsoever to secure the appropriate Intellectual Property Rights or licenses unless otherwise agreed to with the Client in writing.
13.1 Where and if applicable, the required Releases (including but not limited to model Releases, appearance Releases, material Releases and location Releases) are to be secured on the designated forms by the Client, prior to the commencement of Production.
13.2 Any model, copyright material or Location not released cannot be used by Handmade Media for purposes of rendering the Services and can also not be used by the Client for any commercial work generating income.
14. Promotional material
Handmade Media shall be entitled to use the Final Product or any part thereof in its promotional material and solely for the purpose of promoting its business.
15. Rights of refusal
15.1 Handmade Media will not perform any Services or include in the Final Product any designs, any text, images or other data which it deems to be immoral, offensive, obscene or illegal.
15.2 The Client shall be responsible to ensure that all material submitted to Handmade Media, which shall be used for advertising purposes, shall conform to all standards laid down by all relevant advertising standards authorities and legislation.
15.3 In the event where any images, designs, text and/or data that Handmade Media has in good faith included in the Final Product is subsequently discovered to be in contravention of the Terms and Conditions, any national regulations, standards or legislation, the Client is obliged to allow Handmade Media to remove the contravention without hindrance or penalty and Handmade Media shall not be held liable for any costs, loss, damages or penalties suffered by the Client as a result of such action.
Handmade Media shall be entitled to sub-contract, assign or delegate all or any portion of the Services to third parties and shall be entitled to procure any Talent and Equipment that Handmade Media in its sole discretion, deems appropriate for the performance of the Services and creation of the Final Product.
17. Limitation of liability
17.1 The Client shall at all times be solely liable for the safety and security of all persons on set, directly or indirectly involved in the rendering of the Services. The Client shall take out and maintain sufficient insurance in order to cover itself against any of the aforesaid risks.
17.2 Handmade Media will not be liable for any deaths, injuries, loss or damage suffered by the Client or any third Party which arises out of the rendering of the Services, caused by any act or omission of Handmade Media or its employees, consultants, agents, contractors or sub-contractors, save in instances of gross negligence or wilful misconduct.
17.3 In addition to any limitations or exclusions of liability specified elsewhere in the Terms and Conditions or in the Cost Estimate, Handmade Media shall not be liable for any losses or damages suffered by the Client, arising from:
17.3.1 The acts or omissions of third parties including but not limited to:
126.96.36.199 Suppliers of goods or services, which shall include all suppliers engaged by the Client and Handmade Media either before, during or after the agreement has terminated;
188.8.131.52 any fire, flood, industrial action, strikes, riots, act of God or other event beyond the reasonable control of Handmade Media.
17.4 Should a court, arbitrator or judicial tribunal find that Handmade Media is liable to the Client for any loss or damages whatsoever and howsoever arising, such amount of damages to be paid will not be for an amount exceeding the Contract Amount for any damage suffered by the Client. The amount of revenue received by Handmade Media, for the purpose of this clause, will be the proportion of the Contract Amount in terms of the Cost Estimate received from the Client up to the date on which the cause of action arose.
17.5 If any third Party successfully claims against Handmade Media, which exceeds Handmade Media’s liability in terms of this Agreement, then the Client, by entering into this agreement, indemnifies Handmade Media and will reimburse Handmade Media, on demand, for all payments, damages and costs (including, but not limited to legal fees on attorney and client scale). Handmade Media will immediately advise the Client if a claim has been brought against it.
18.1 In the event of a breach by any of the Parties (“the Defaulting Party”) of its obligations in terms of this Agreement, the other Party (“the Innocent Party”) may, without prejudice to any rights it may have, deliver to the Defaulting Party a written notice setting out the alleged breach by the Defaulting Party, demanding that the Defaulting Party remedy the breach within a period of 7 (Seven) Business Days.
18.2 In the event of the Defaulting Party failing to remedy the breach within the stipulated period of time, then the Innocent Party may, at its sole election and notwithstanding any other remedy that the Innocent Party may have:
18.2.1 Enforce the terms and conditions of the Agreement; or
18.2.2 Cancel this Agreement and claim damages.
19. Domicilium and notices
19.1 The parties hereby select for all purposes of this agreement as their respective domicilia citandi et executandi their respective business addresses recorded in the Cost Estimate or any such other address as the Parties may notify each other of in writing from time to time, for the delivery of all notices and/or processes thereto.
19.2 Any notice addressed by any Party to the other Party shall -
19.2.1 if delivered by hand at the address of its domicilium in terms of this clause, be deemed to have been duly received by the addressee on the date of delivery; or
19.2.2 if posted by prepaid registered post to the addressee's domicilium in terms of this clause, be deemed to have been received by the addressee on the fifth day following the date of such posting; or
19.2.3 if sent by telefax or e-mail to his telefax number or e-mail address in terms of this clause be deemed to have been duly received by the addressee on date of successful transmission thereof.
19.3 Notwithstanding anything to the contrary contained or implied in this agreement, a written notice or communication actually received by one of the parties from another including by way of facsimile transmission shall be adequate written notice or communication to such Party.
20.1 The parties hereby acknowledge that the agreement concluded between them constitutes the entire agreement between them and that no other conditions, stipulations, warranties nor representations whatsoever, have been made by any Party or that Party's agent, other than as specifically included herein.
20.2 No latitude, extension of time or other indulgence which may be given or allowed by either Party to the other in respect of any payment provided for in this agreement or the performance of any other obligation shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of or otherwise affect any of that Party's rights in terms of or arising from this agreement, or prevent such Party from importing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
20.3 The parties agree that no variation of, addition to, consensual cancellation or novation of this agreement in its entirety or of any term or condition thereof shall be of any force or effect, unless such amendment or cancellation is reduced to writing and signed by all the parties or their authorised representatives hereto.
20.4 In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, those terms will be severable from the remaining terms, which will continue to be valid and enforceable.
21. Governing law
21.1 This Agreement will construed and governed by South African substantive and procedural law.