Terms and Conditions
TERMS AND CONDITIONS
Last updated: 2020-05-05
1.1 All reference to “we“, “us” and “our” in these terms and conditions are deemed to refer to Fylmer (Pty) Ltd, Registration No. 2019/631266/07 (hereinafter also referred to as “Fylmer”), a private company registered in term of the laws of the Republic of South Africa and having its registered address at 50 Upper Tree Road, Camps Bay, Cape Town, South Africa, 8005.
1.2. All references to “you” and “your” are deemed to refer to any user and/or visitor of HYPERLINK “http://www.fylmer.tv” www.fylmer.tv (“the platform”).
1.3. These terms and conditions (“Terms and Conditions“) govern your use of the Platform.
In this agreement unless the context otherwise requires, the following words and expressions shall have the meanings assigned to them hereunder:
2.1. Additional Terms means any additional requirements that a Client includes in a Brief, clearly expressed under the single heading of “Additional Terms” which are intended to bind a Creator to a series of supplementary and overarching obligations.
2.2. Brief means a creative brief setting out a Client’s Production requirements posted on or via the Platform.
2.3. Broadcast Media means all broadcast media including, but not limited to, television advertising, sponsorship indents, cinema, news programmes and new media.
2.4. Budget means the total budget for a Production and includes the Creator payment.
2.5. Client means a party registered through the Platform that wishes to commission a Creator to complete a Production using the Platform.
2.6. Client Assets means images, audio/audio-visual content, scripts, screenplay, advertising or campaign materials, publications, music, documents, software, information, literary material, any logo, trademark or indicia, and/or other materials provided by the Client, (including materials ordinarily subject to copyright, patent and is classified by the Client as a trade secret or form of know-how and any information that the Client regards as confidential information), for inclusion in Responses and/or use in the fulfilment of Briefs.
2.7. Contract means the contract formed between a Client, a Creator and Fylmer in accordance with the terms and conditions set out in the Brief and herein.
2.8. Creator means, but not limited to, filmmakers, photographers, directors, editors, designers, animators, production companies or producers registered through the Platform who wish to submit Responses and produce Productions.
2.9. Creator Payment means the amount specified in a Brief payable to a Creator.
2.10. Digital Media means all forms of digital files delivered on or via the global computer network known as the Internet or any other digital delivery system (including but not limited to mobile device telecommunications networks), whether streamed or downloaded, including without limitation websites, email, banner ads, online content and Client’s own and third party Internet and/or social media websites and digital websites and communication channels, including streaming services and any other digital media not now known or to be created in the future, but excludes Broadcast Media and Print Media as defined herein.
2.11. Fylmer Fee means the amount payable by the Client to us as specified via the Platform and/or our invoice, such fee being:
2.11.1. A standard fee of 20% (twenty percent) of the Budget; or
2.11.2. A fee of 30% (thirty percent) of the Budget in the event that Fylmer assists the Client in respect of inter alia Brief selection and attendance of production meetings.
2.11.3. The above fees shall be, at Fylmer’s sole discretion, negotiable with the respective Clients.
2.12. Platform means our platform located at Fylmer.tv, including our mobile application and similar online and/or digital applications.
2.13. Production means, but not limited to, the graphic, audio or audio-visual production to be produced in accordance with a Brief.
2.14. Response means a Creator’s creative response submitted via the Platform to a Brief.
2.15. Response Deadline means the deadline for the receipt of Responses specified in the relevant Brief.
2.16. Taxes means any value-added tax, sales tax, goods and services tax, withholding tax, or other tax, levy, duty, impost, charge or fee imposed on any transaction entered into through or in connection with the Platform that by applicable law must be added to any amounts charged for any participation, use or purchase related to the foregoing and must be collected by you, us or the relevant Creator.
2.17. Production store means our library of Productions located at fylmer.tv.
3. ACCEPTANCE OF TERMS
3.1. Fylmer permits the use of this Platform subject to the Terms and Conditions. By using this Platform in any way, you shall be deemed to have understood and accepted all the Terms and Conditions unconditionally. Such Terms and Conditions shall form a binding agreement between you and us and/or may form a binding agreement between Creators, Clients and us. You must not use this Platform if you do not agree to the Terms and Conditions.
3.2. Use of the Platform:
3.2.1 You may only use the Platform if you are 18 years of age or older. If you are under 18, you may use the Platform only with the involvement of your parent or legal guardian.
3.2.2. You may not use the Platform to distribute material which is defamatory, offensive, contains or amounts to hate speech or is otherwise unlawful.
3.2.3. You may not display, publish, copy, print, post or otherwise use the Platform and/or the information contained therein for the benefit of any other website without the express prior written consent of an authorised representative of Fylmer.
4.1. You may use elements of the Platform by simply visiting our website, but access to most of the Platform is available only to registered users.
4.2. You agree that you will provide truthful and accurate information when registering to use the Platform. The decision to accept a registration is in our discretion and we may revoke a registration at any time.
4.3. You are responsible for maintaining the confidentiality of your password and account information, and you are solely responsible for all activities that occur under your password or account and for any access to or use of the Platform by you or any person or entity using your password, whether or not such access or use has been authorised by you.
4.4. You must immediately notify us of any unauthorised use of your password or account or any other breach of security. We will not be liable for any loss or damage whatsoever resulting from the disclosure of your username and/or password contrary to these Terms and Conditions.
5. POSTING OF BRIEFS AND EXCLUSIVITY
5.1. By creating and posting a Brief, a Client warrants that:
5.1.1. it intends in good faith to select a Response;
5.1.2. the Brief describes its requirements as accurately as possible and in sufficient detail for the Creator to determine whether the Budget will be adequate remuneration;
5.1.3. it has the authority and funds to pay the Budget and any Taxes; and
5.1.4. where it posts materials as part of a Brief that would ordinarily be classified as a Client’s trade secrets/know-how, product specifications and/or other confidential information, the Client has reviewed all such materials and is satisfied that posting the materials to a Brief may make them publicly available to Creators.
5.2. If a Client posts a Brief using the Platform the Client agrees that up to and including the Response Deadline that:
5.2.1. the Brief shall be exclusive to the Platform and the Client will only solicit responses to the Brief via the Platform;
5.2.2. without limiting the sub-paragraph 5.2.1 above, the Brief shall not appear on or be communicated via any other websites, platforms or third party services save on a solely promotional basis;
5.2.3. any promotion referred to in the sub-paragraph 5.2.2 above will include a link to the Platform as the exclusive point of contact for responses to the Brief.
6. RESPONDING TO BRIEFS
6.1.Some Briefs may be limited in their availability to certain Creators only (eg. based on location, quality, or due to confidentiality).
6.2. A Creator must post its Response prior to the Response Deadline. However, we reserve the right, at our sole discretion, to accept or refuse to accept late Responses. All dates and times are South African Standard Time (SAST) unless otherwise stated. It is the Creator’s responsibility to convert the time and date to its local time zone.
6.3. By posting a Response, a Creator offers to contract with the relevant Client and us (to the extent applicable) for the production and delivery of the Production on the terms and conditions set out in the Brief and the terms and conditions set out herein.
6.4. Creator must not disclose its Response to any third party unless they are directly involved in the Creator’s production.
6.5. Creator must not include any materials in a Response which incorporates work from any previously commissioned Fylmer Briefs that are yet to be public domain.
7. BRIEF ELECTION AND FORMATION OF CONTRACT
7.1. Except as set out in the Brief, the Client will notify the Creator via the Platform within 30 (thirty) days of the Response Deadline if Creator’s Response was successful or not. If a Client has not notified a Creator within 30 (thirty) days of the Response Deadline, a Creator may request in writing that its Response be removed from consideration.
7.2. If we and/or the Client are unable to communicate with the Creator (eg. to select or commission them) within 24 (twenty four) hours of such notification, the Client reserves the right to withdraw its selection of the Creator’s Response and commission another Creator without liability of us or the Client to the Creator.
7.3. Neither we or the Client will have any liability to a Creator in respect of a failure for any reason to select a Response.
7.4. By notifying a Creator that a Client has selected the Creator’s Response, a Client accepts the Creator’s offer to contract referred to in clause 6.3 above with the effect that an automatic binding contract arises between the Creator, the Client and us (to the extent applicable) on the terms of the Brief and the Terms and Conditions set out herein (hereinafter “ the Contract”).
7.4.1. To the extent of any inconsistency, any provisions of the Brief identified as Additional Terms (provided such terms are located under the designated heading of “Additional Terms”) will override the terms of the Contract. Otherwise, the terms of the Contract will override the Brief.
7.4.2. The relationship between Client, Creator and us is and will be that of independent contractors and nothing in the Contract shall create an employment, trustee, partnership or agency relationship and no party will make any representation as such.
7.5. Clients must keep all Responses confidential and shall not use or disclose any Responses for any purpose other than to select a Response, other than to parties associated with the Brief and the Client’s professional advisors and related entities, employees, agents and personnel and professional representatives (on a need-to-know and confidential basis only).
7.6. Once a Response has been accepted, Client and Creator consent to us providing each of Client and Creator’s contact details to each other.
7.7. Notwithstanding paragraph 7.6 above, Client and Creator must ensure that all ongoing communication related to any Production is completed on the Platform via the messaging and other production management tools provided, so we have a record of this communication for Client and Creator’s protection.
8. PRODUCTION REQUIREMENTS
8.1. Subject to confirmation by us that we have received the Budgeted Amount in accordance with clause 9, the Creator must produce and deliver the Production in accordance with the Brief (including, the Budget and production schedule).
8.2. Without limiting paragraph 8.1 above, the Creator agrees to produce/edit and deliver each Production with reasonable skill and care and in accordance with:
8.2.1. good industry practice;
8.2.2. all applicable laws;
8.2.3. the relevant Brief;
8.2.4. the Creator’s Response including any examples of the Creator’s work provided; and
8.2.5. the Client’s reasonable instructions and specifications.
8.3. The Creator must provide all facilities, assets, personnel and other resources necessary to produce/edit and deliver each Production unless otherwise agreed with the Client.
8.4. The Creator agrees to provide up to 3 rounds of changes for offline video edits, up to 3 rounds of changes for online video edits, and up to 2 rounds of changes for photography edits, as requested by the Client in respect of each Production, unless otherwise agreed in writing or stated in the Brief.
8.5. The Creator will supply digitally uploaded files of the Production in accordance with the deliverables set out in the Brief, within the timeframe specified in the Brief.
8.6. The Creator must enter into all relevant Production Contracts in relation to the Production.
8.7. Without limiting paragraph 8.6 above, the Creator undertakes that all personnel involved in, and all contributors to (including talent, voice-over artists and music rights holders), any Production will sign release forms and other written agreements (together “Production Contracts”) if required which will:
8.7.1. enable the Client, its successors, assignees and licensees to exploit the Production (or any part of it) in all Digital Media, globally and in perpetuity, and not subject to any usage restraints and/or additional clearance fees;
8.7.2. enable the Client, its successor, assignees and licensees to exploit the Production (or any part of it) in all Broadcast Media and/or print media, globally and in perpetuity, subject to the usage limitations and/or additional clearance fees which only apply to the rights of talent and relevant 3rd party contributors for an unlimited number of transmissions and/or exhibitions and for the full period of copyright, without any requirement to pay any further costs (other than those contemplated in the Brief). Any terms or territorial restrictions to such usage rights will commence on first broadcast or print of the Production;
8.7.3. For clarity, with respect to clause 8.7.1 and 8.7.2 above, any usage restrictions (which may require additional fees) that may be applicable to third parties (including talent, voice-over artists and music rights holders) are enforceable solely by those third parties and not by the Creators;
8.7.4. contain express waivers of and/or consents to not enforce so called moral or similar rights in connection with the Production; and
8.7.5. be free of any third party limitations or residual fees unless otherwise agreed in writing.
8.8. We are able to facilitate the provision of digital release form templates to assist in the process of concluding Production Contracts. However, Creator and Client acknowledge that release forms provided by the Client may also be used. As between us, the Client and Creator, the Client is solely responsible for:
8.8.1. ensuring that the Creator has obtained all necessary Production Contracts and/or release forms;
8.8.2. ascertaining that the rights obtained pursuant to these documents are sufficient for Client’s proposed exploitation of the Production; and
8.8.3. requesting any necessary copies and/or other evidence from the Creator for these purposes.
8.9. Without limiting the aforegoing, Client may request in a Brief that Creator use Client’s preferred form of Production Contracts. If Client makes such a request, Creator must use Client’s preferred form of Production Contracts. The Creator must not use its own Production Contracts without the express consent of the Client.
8.10. The Creator must provide copies of the Production Contracts to us and/or the relevant Client upon request, including completing any workflow (eg. digital release forms) that is required of the Creator via the Platform.
8.11. Creator will maintain in force, with a reputable insurance company, professional indemnity insurance (which will include cover pertaining to a Creator breach of any third party Intellectual Property and Client trade secrets/know how or confidential information) and public liability insurance as well as sufficient weather insurance where necessary, to cover the liabilities that may arise under or in connection with any Brief and shall, on our or the Client’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance. Creator warrants that it holds all such insurance policies and that such insurance policies fully cover its participation in any Brief. As such, the Creator remains obligated to complete the production in terms of the Brief and Budgeted Amount. The Creator acknowledges that it alone will bear any and all liability arising from any failure to hold such insurance and it shall have no claim against us or the Client in respect of any losses Creator incurs. Client warrants that it has checked and satisfied itself of the Creator’s insurance status, and we have no liability whatsoever to Client in relation to such insurance.
8.12. Creator warrants that neither it or any contributor to any Production are subject to the requirements or obligations of any union, guild or similar association (Union) or, if Creator or any such party is subject to any Union, Creator warrants and agrees to fully comply with such Union’s rules and policies and Creator indemnifies and hold us and the Client harmless for any Union related claims whatsoever and howsoever caused.
8.13. Creator agrees:
8.13.1. if reasonably requested by us or the Client, to participate in press photography/filming, media interviews and/or other promotional/publicity activity in respect of the Platform, and/or any Production produced by Creator; and
8.13.2. that we and/or the Client shall have the right to use Creator or Creator’s key personnel’s name, likeness and biography to promote the Platform and/or any Production produced by the Creator.
8.14. Creator undertakes to notify a Client where it proposes to work with a celebrity or well-known talent or social influencers in relation to any Production and further undertakes to not depict or refer to any person in any Production without having first obtained written consent for the depiction or reference and to the manner in which it is made.
8.15. The Creator understands and acknowledges that where a production involves domestic or international travel, that this must be factored into the Budget (for both crew and equipment) and that the Creator is responsible for obtaining any required visas and local filming permits.
9. FEES AND PAYMENT
9.1. Client must pay the Budget and any other amounts payable by Client directly to us in accordance with the Contract.
9.2. Client must pay to us:
9.2.1. the Budget amount by the due date as specified via the Platform. Fylmer reserves the right to determine (on a case by case basis) whether new Clients are required to pay a percentage of or the full Budget prior to the publication of any Brief;
9.2.2. any additional amounts agreed to over the initial Budget amount, and the applicable Fylmer Fee; and
9.2.3. any costs and expenses set out in the Brief, by the payment method and currency stipulated via the Platform or applicable invoice (which may be updated from time to time).
9.3. Client and Creator acknowledge that we will retain the Fylmer Fee and Client will release (via the Platform) the applicable Creator Payment (which comprises the Budget less the Fylmer Fee) to the relevant Creator:
9.3.1. on final delivery of the Production; or
9.3.2. if the Client is eligible, via progress payments, in accordance with the Brief and the prescribed payment schedule using the Platform.
9.4. In relation to payments referred to in sub-paragraph 9.3.2 above, the Client and Creator acknowledge that the Client will be responsible for the release of payments, including progress payments, based on the Creator’s achievement of the agreed milestones and signifying final delivery by marking the Brief as complete on the Platform (or delivery being deemed to have occurred – see paragraph 9.5 below). Any costs incurred by the Creator prior to release of payments are solely at the Creator’s own risk.
9.5. Client warrants that it will acknowledge final delivery of the Production (acting reasonably and in good faith) by marking the relevant Brief as complete via the Platform. In the absence of such acknowledgement, Client agrees that final delivery shall have been deemed to occur if Client does not reject delivery within 21 days of receipt of the final online edit of Production or on any use by Client of the Production. Client acknowledges that it will only be entitled to reject the Production in the event of breach of the Contract by the Creator or if the Client acting reasonably is of the opinion that the Production does not substantially accord with the Brief and subsequent directions given in respect of the Production in accordance with the Contract.
9.6. Client is solely responsible for conducting appropriate due diligence and ensuring the suitability of the Creator prior to their engagement, and a lack of experience or skill on behalf of the relevant Creator will not (by itself) entitle Client to reject delivery.
9.7. If Client rejects a Production in accordance with paragraph 9.5 above, Client is not required to pay the Creator any amounts that were contingent on delivery. Client will be entitled to a repayment from us of the amount of the Creator Payment not yet released to the Creator. We acknowledge that we must refund that part of the Creator Payment to Client within 30 days after receiving written notice from Client that Client has rejected a Production in accordance with paragraph 9.5 above.
9.8. If Client fails to make any payment due under the Contract by the due date for payment, then, without limiting our remedies, Client agrees to pay interest on the overdue amount at the rate of 2% per annum above our primary bank’s standard overdraft rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Client agrees to pay the interest together with the overdue amount.
9.9. Client agrees to make all payments under the Contract without withholding or deduction of, or in respect of, any Taxes unless required by law. If any such withholding or deduction is required by law, Client agrees to, when making the payment to which the withholding or deduction relates, pay to us such additional amount as will ensure that we receive the same total amount that we would have received if no such withholding or deduction had been required. In addition, where required to be paid by law, the Client must provide to us a copy of the certificate of withholding (or analogous document).
9.10. Client and Creator acknowledge that:
9.10.1. The payments under the Contract payable to Fylmer are exclusive of Taxes which, if applicable, shall be payable by Client;
9.10.2. the Creator Payment shall be paid to Creator in the currency stated on the Brief (or as otherwise advised by us) by such method as stated on the Platform (which may be updated from time to time);
9.10.3. we have no responsibility to Creator whatsoever in relation to the impact of exchange rate variations or payment gateway fees and charges, on the amounts that Creator actually receives;
9.10.4. Notwithstanding clause 9.10.1, in the event a Client determines that it is required to withhold any Taxes from any sums payable to us, the Client is obligated to notify us in advance, setting out the legal basis for the withholding of these sums.
9.11. Client further acknowledges that, once the Creator Payment (or any portion of it) is released to the Creator, the Creator Payment is non-refundable other than as expressly set out in the Contract and we shall have no liability to the Client in respect of the same. Client is solely responsible for undertaking due diligence in respect of the relevant Creator and/or Production to ensure its compliance with the Contract prior to triggering progress payments and/or acknowledging final delivery.
9.12. Creator warrants that it is entitled to be the sole recipient of the Creator Payment or any other payment in respect of a Production, and neither us nor any Client shall have additional liability to Creator or any other person in respect of any Production following payment in full of the Creator Payment.
10. CANCELLATION OF BRIEFS DUE TO CREATOR’S BREACH
10.1. If the Creator is in material breach of its obligations pursuant to the Contract and, if capable of remedy, such breach has not been remedied within 72 (seventy two) hours of written notice requiring such remedy, Client may cancel a Brief after commissioning a Creator at any time on provision of written notice to the Creator and us.
10.2. If a Client cancels a Brief 72 hours or more before the Response Deadline, Client will not incur cancellation fees.
10.3. If however a Client cancels a Brief 72 hours or less before the Response Deadline or after the Response Deadline, but before selection of a Brief, Client will be liable for 50% (fifty percent) of the Fylmer Fee. We may, in our sole and absolute discretion, agree to waive some or all of the Fylmer Fee if we deem the response was not satisfactory to Client’s Brief.
10.4. If a Client cancels a Brief 7 (seven) days or more prior to the first scheduled production day for the Production, Client will be liable for 50% (fifty percent) of the Fylmer Fee.
10.5. If Client cancels a Brief 7 days or less prior to the first scheduled production day for the Production, Client will be liable for 75% (seventy five percent) of the Fylmer Fee.
10.6. If Client cancels a Brief after the first scheduled production day for the Production, Client will be liable for 100% (one hundred percent) of the Fylmer Fee.
11. DISCLOSURE, CONFIDENTIALITY, AND LICENCE
11.1.Creator will not at any time use or disclose to any person any Client Assets and/or confidential information relating to us or any Client save to Creator’s personnel associated with the Brief and of all of Creator’s professional advisors and Creator’s related entities, employees, agents and personnel and professional representatives (on a need-to-know and confidential basis only) or as otherwise required by law. Without limiting this clause 11.1, if the Creator briefs any third party with respect to a Brief, Response or the Contract, the Creator must enter into an agreement with the third party under which the third party commits to confidentiality obligations not less onerous than those set out in clause 11.1.
11.2.Client will not at any time use or disclose to any person any confidential information relating to us or any Creator (including, without limitation, any Response) save to all of Client’s professional advisors and Client’s related entities, servants, agents and personnel and professional representatives (on a need-to-know and confidential basis only) or as otherwise required by law.
11.3. If Client uploads Client Assets to the Platform, or otherwise provides Client Assets to us or any Creator, Client grants:
11.3.1. us, a non-exclusive, revocable, royalty-free, worldwide licence to host and store the Client Assets and to make them available to Creators strictly for the purposes of the operation of the Platform and performance of the Contract; and
11.3.2. each Creator the right to use, edit and modify the Client Assets as reasonably required (or directed by the Client) to produce and submit Responses and perform the Contract (“the Licence”).
11.4. Creator agrees to use the Client Assets in accordance with the Licence solely for the purposes of creating and submitting their relevant Response to a Brief and/or completing the Production.
11.5. Upon final delivery of the Production, cancellation of any Brief or notification that Creator’s Response has been unsuccessful, Creator agrees to make no further use of the Client Assets and delete all copies of such Client Assets in Creator’s possession.
11.6. Notwithstanding anything in clause 11.3, where a Creator has been commissioned by a Client and for 3 years from the date of final delivery of the Production, the Creator must retain (in a secure location), a safe and secure copy of the final Production files and any key project files pertaining to the Production. Within 24 hours and if requested by Fylmer or a Client, the Creator must (without claiming any additional fees) provide a downloadable link to all master files. If the transfer can only be carried out physically, the Client will reimburse the Creator’s reasonable costs for the purchase and couriering of a portable hard drive.
11.7. Other than in relation to the grant of the Licence, nothing in the Contract will be taken to constitute a transfer, assignment or grant of any ownership or other rights in any intellectual property rights in the Client Assets to us or Creator.
11.8. Client warrants that:
11.8.1. Client has all necessary rights, licences, permissions and consents to grant the Licence;
11.8.2. the Client Assets and the Licence, and our and/or any Creator’s exercise of the Licence, shall not infringe the rights, including (without limitation) the intellectual property rights, of any third party; and
11.8.3. the Client Assets shall not include anything which is or may reasonably be regarded as offensive, blasphemous, obscene, defamatory or otherwise unlawful.
12. DEALINGS BETWEEN US, CLIENT, AND CREATOR
12.1. Each of Creator and Client:
12.1.1. agree to act reasonably and in good faith in their respective dealings with us and each other and to respond promptly to all communications.
12.1.2. acknowledge that we are not responsible for any element of the production or liable for the acts or non-performance by Client or Creator.
12.1.3. Client and Creator agree not to attempt to circumvent the Platform or send or receive consideration for any Brief or related work other than via the Platform.
12.1.4. Client agrees to indemnify us and the Creator against all liabilities, costs, expenses, damages and losses suffered or incurred by us arising out of or in connection with any claim made against us arising out of or in connection with any breach of the Contract or other act or omission by Client.
12.1.5. Creator agrees to indemnify us and the Client against all liabilities, costs, expenses, damages and losses suffered or incurred by us arising out of or in connection with any claim made against us arising out of or in connection with any breach of the Contract or other act or omission by Creator and/or any claim that the Production or the Client’s exploitation of the Production infringes the intellectual property or other rights of any person or entity.
12.1.6. Neither Creator nor Client, while registered on the Platform and for a period of 3 months after ceasing to be registered, shall:
22.214.171.124. in the case of the Client, knowingly seek or accept the services of any Creator independently from the Platform; or
126.96.36.199. in the case of the Creator, knowingly seek or accept the custom of any Client independently from the Platform; or
188.8.131.52. induce, or attempt to induce, any user of the Platform to: (i) cease or refrain from using the Platform; or (ii) reduce its use of the Platform, or do any other thing which is reasonably likely to have such an effect.
13. OWNERSHIP AND COPYRIGHT
13.1. The contents of the Platform, including any information, software, icons, text, graphics, lay-outs, images, sound clips, trade names, logos, trademarks and service marks are protected by law, including but not limited to copyright and trade mark law, and are owned by or licensed exclusively to Fylmer.
13.2. No licence to or right in any of such contents is granted to or conferred upon you. Any unauthorised use, distribution or reproduction of the said contents is prohibited.
14. DISCLAIMER AND LIMITATION OF LIABILITY
14.1. Any person who accesses the Platform or relies on the Platform or on the information contained in the Platform does so at his or her own risk.
14.2. While Fylmer takes reasonable measures to ensure that the contents of the Platform are accurate and complete, Fylmer makes no representations or warranties, whether express or implied, as to the quality, timeliness, operation, integrity, availability or functionality of the Platform or as to the accuracy, completeness or reliability of any information on the Platform.
14.3. All information provided on the Platform is provided “as is” without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, completeness, or non-infringement, as may be allowed in law.
14.4. Fylmer does not accept any responsibility for any errors or omissions on the Platform.
14.5. Fylmer also makes no warranty or representation, whether express or implied, that the information or files available on the Platform are free of viruses, spyware, malware, trojans, destructive materials or any other data or code which is able to corrupt, destroy, compromise or jeopardise the operation, stability, security functionality or content of your computer system, computer network, hardware or software in any way.
14.6. Fylmer shall not be liable for any direct, indirect, incidental, special or consequential injury, loss, or damages which might arise from your use of, or reliance upon, any material or content contained in, or inability to use, and/or unlawful activity on, the Platform and/or any linked third party website.
14.7. You hereby indemnify Fylmer against any loss, claim or damage which may be suffered by yourself or any third party arising in any way from your use of the Platform and/or any linked third party website.
15. LINKED THIRD PARTY WEBSITES
15.1 The Platform may contain links or references to other websites (“Third Party Websites“) outside of our control, including those of advertisers. These Terms and Conditions do not apply to those Third Party Websites and Fylmer is not responsible for the practices and/or privacy policies of those Third Party Websites or the cookies that those sites may use.
15.2. Notwithstanding the fact that the Platform may refer to or provide links to third party websites, your use of such Third Party Websites is entirely at your own risk and we are not responsible for any loss, expense, claim or damage, whether direct, indirect or consequential, arising from your use of such Third Party Websites or your reliance on any information contained therein.
16. CHANGES TO THESE TERMS AND CONDITIONS
16.1. Fylmer reserves the right to update and/or amend the Terms and Conditions from time to time, on written notice to you. You are furthermore encouraged to check the Platform regularly. Any such change will only apply to your use of the Platform after the change is displayed on the Platform and notice has been provided to you as aforesaid. If you use the Platform after such updated or amended Terms and Conditions have been displayed on the Platform and notice has been delivered to you, you will be deemed to have accepted such updates or amendments.
16.2. Availability and termination
16.2.2. We will use reasonable endeavours to maintain the availability of the Platform, except during scheduled maintenance periods, and reserve the right to discontinue providing the Platform or any part thereof with or without notice to you.
16.2.2. Fylmer may in its sole discretion terminate, suspend and modify the Platform, with or without notice to you. You agree that Fylmer will not be liable to you in the event that it chooses to suspend, modify or terminate the Platform, except in those circumstances where notice is required.
17. FORCE MAJEURE
17.1. Failure by the Client, the Creator or us to perform any of their respective obligations under the Contract (or a delay in such performance) due to a Force Majeure Event, will not constitute a breach of the Contract. The party affected by the Force Majeure Event will:
17.1.1. promptly give the other parties notice of the Force Majeure Event and an estimate of the non-performance and delay;
17.1.2. take all reasonable steps to overcome the effects of the Force Majeure Event; and
17.1.3. resume performance as soon as practicable after the Force Majeure Event no longer affects any party, provided that if a Force Majeure Event continues for a period of 30 days or more, the Client may terminate a Brief or the Contract with immediate effect by providing notice to us and the Creator. Where a Force Majeure Event is an act of God (including a severe weather event) which prevents production or filming which cannot be rescheduled despite the parties best efforts, the Client and Creator mutually agree to negotiate in good faith for the settlement of any reasonable out of pocket expenses incurred by the Creator prior to the Force Majeure Event (including a severe weather event).
17.2. Creator must ensure that its production schedule for a Production that involves outdoor filming includes a back-up plan, where possible, for inclement weather. If the Creator fails to have such a plan or to implement such a plan, then clause 17.1.3 above will not apply to any resulting failure by Creator to meet its obligations under the Contract.
18. GOVERNING LAW AND JURISDICTION
These Terms and Conditions shall be governed and interpreted in accordance with the laws of the Republic of South Africa. Your continued use of the Platform will constitute your consent and submission to the jurisdiction of the South African courts regarding all proceedings, transactions, applications or the like instituted by either party against the other, arising from any of these Terms and Conditions.
19.1. Subject to clause 10 above, if any party (“Defaulting Party“) breaches any of these terms and conditions and fails to remedy such breach within 7 (seven) days of receipt of notice to remedy the breach, the aggrieved party shall be entitled to claim specific performance or to cancel this agreement forthwith upon written notice to the defaulting party, without prejudice to its right to recover:
19.1.1. any amounts that may be due to it in terms of this agreement; and
19.1.2. any loss or damage suffered as a consequence of the breach or the cancellation of this agreement.
19.2. We may, in our sole discretion, terminate or temporarily suspend your password, account (or any part thereof) or use of the Platform without notice if you are in breach of these Terms or if we believe in our reasonable discretion that your use of the Platform is unsuitable in any way.
20.1. Fylmer hereby selects its registered address cited hereinabove as its address for the service of all formal notices and legal processes in connection with these Terms and Conditions (“domicilium“).
20.2. Client and Creator hereby select the addresses, including email addresses specified in their respective registration details as their domicilium. Either party may change its domicilium to any other physical address by not less than 7 days’ notice in writing to the other party. Notices must be sent either by hand, prepaid registered post, or email and must be in English. All notices sent –
20.2.1. by hand will be deemed to have been received on the date of delivery;
20.2.2. by prepaid registered post, will be deemed to have been received 10 days after the date of posting;
20.2.3. by email will be deemed to have been on the date indicated in the “Read Receipt” notification. ALL EMAIL COMMUNICATIONS BETWEEN YOU AND US MUST MAKE USE OF THE “READ RECEIPT” FUNCTION to serve as proof that an email has been received.
21.1. You may not cede, assign or otherwise transfer your rights and obligations in terms of these Terms and Conditions to any third party without our prior written consent.
21.2. If any term or condition contained herein is declared invalid, the remaining terms and conditions will remain in full force and effect.
21.3. Subject to clause 16 hereinabove, no substantive variation, addition, deletion, or agreed cancellation of these terms and conditions will be of any force or effect unless in writing and accepted by or on behalf of the parties hereto.
21.4. No indulgence, extension of time, relaxation or latitude which any party (“the grantor“) may show grant or allow to the other (“the grantee“) shall constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future.