SERVICES AGREEMENT
This Agreement shall constitute the terms and conditions of the agreement by and between Moonlighting VWX Productions (Pty) Ltd, registration number 2013/227143/07, ("Production Company") and CFX Productions CC, registration number 2001/022176/23, (“Contractor”) for services in connection with the motion picture film tentatively entitled “The Curse of Hendon” ("Picture").
Whereas Production Company wishes to engage Contractor to render services required by Production Company in connection with the Picture, the Parties agree as follows:
1. Services :
(a) The Contractor will design, test and/or present for filming, the specialized fabrications required as per scripted scenes, in accordance with the details and specifications (“Specifications”) more specifically described in Schedule “A”, and as may be revised by Production Company from time to time in its sole discretion.
(b) Contractor hereby agrees to promptly and faithfully comply with all instructions, directions, requests, rules and regulations made or issued by Production Company hereunder, and will perform professional services required hereunder conscientiously and to the full extent of Contractor’s abilities at all times, wherever and whenever required or desired by Production Company and as instructed by Production Company in all matters, including those involving artistic taste and judgment.
(c) This Agreement comes into full force and effect from 20 June 2014 ("Effective Date"), notwithstanding date of signature.
(d) As used herein, the term “Work” shall be defined as all items, including but not limited to fabrications and designs created and/or produced hereunder by Contractor including, without limitation, the materials and the results and proceeds of the services of Contractor in connection with the Picture pursuant to the Specifications.
(e) Contractor acknowledges that Production Company may amend the script at its own discretion and in consultation with the director of the Picture. Production Company and Contractor shall mutually agree on a reasonable price adjustment (if any) in good faith.
(f) During the "Term" (as defined below), the Contractor shall engage all of the crew and labour required for the Work. All personnel required for the purposes of this Agreement shall be Contractor’s employees or independent contractors as the case may be (collectively “Sub-Contractors”) and Contractor shall have all the duties and responsibility of an employer. All contracts with Sub-Contractors, and payments to Sub-Contractors, shall be administered by the Contractor and shall be at Contractor’s sole cost and be Contractor’s sole and exclusive responsibility. Sub-Contractors shall agree to look solely to Contractor for all compensation or other consideration in connection with the rights granted and services rendered by such Sub-Contractors. Production Company shall have no liability for or responsibility to the Sub-Contractors.
(g) All Sub-Contractors and any other individuals contributing to the Work must sign a certificate of ownership of results and proceeds (vesting same wholly in Contractor) and agree to be bound by the provisions contained in Paragraphs 5 and 13 herein.
2. Term and Delivery:
(a) Contractor’s services commenced on or about the Effective Date and shall continue on a day-to-day basis until the completion of all of Contractor’s services required by Production Company in connection with the Picture (the “Term”). Such services shall be required at times and locations to be designated by Production Company (in its sole discretion), including, without limitation, nights, Saturdays, Sundays and public/religious holidays. For the avoidance of doubt, there shall be no minimum guarantee of engagement hereunder.
(b) Delivery (as defined herein) of the Work to Production Company shall be in accordance with the shooting schedule designated in writing by Production Company which is set forth herein as Schedule “B” (“Schedule”) and shall be completed not later than 27 July 2014 (the “Delivery Date”) as set forth therein. "Delivery" shall mean delivery by Contractor to Production Company of all required elements of the Work, and Production Company’s approval of such Work as being technically and creatively satisfactory and conforming to the Specifications. It is expressly understood and agreed that the timing of services and the Delivery of the Work are of the essence of this Agreement.
3. Compensation :
(a) Provided that Contractor fully performs all services and obligations hereunder and is not otherwise in breach or default hereof, as full and complete consideration for all services rendered and all rights granted by Contractor under this Agreement, subject to Production Company's suspension and termination rights hereunder, and subject to Production Company’s receipt of a copy of this Agreement signed by Contractor, Production Company shall pay to Contractor, and Contractor agrees to accept, compensation in the amount of R663,000 (six hundred and sixty three thousand Rand) in full and final settlement of all rights granted to the Work or otherwise in connection herewith and including the services, persons, adjustments, materials, required by Contractor in order to complete and deliver the Work, which compensation shall be payable as follows:
(i) R218,900 (two hundred and eighteen thousand nine hundred Rand) on 20 June 2014;
(ii) R198,900 (one hundred and ninety eight thousand nine hundred Rand) on 8 July 2014; and
(iii) R245,200 (two hundred and forty five thousand two hundred Rand) on 27 July 2014.
(b) The Fixed Compensation shall be payable upon receipt of appropriate invoices therefor.
(c) Sums payable to Contractor hereunder are exclusive of VAT, which shall be paid by Production Company upon written receipt of a valid VAT invoice satisfactory to Production Company in its sole discretion.
4. Screen Credit : Production Company shall use its best endeavours to include crew involved with the Work (as advised by Contractor) in a credit in the Picture.
5. Rights:
(a) Contractor hereby grants and assigns to Production Company all of its rights in and to the Work (including present and future copyright) and the physical elements and materials related to the Work. Without limiting the foregoing, Production Company shall own all schematic diagrams, designs, mechanical devices, processes or application software which is newly created by Contractor in rendering its services hereunder to develop and/or create the Work. In addition to ownership of the physical elements,
Production Company shall also own all intellectual property rights related to such designs, devices and processes, including but not limited to, any copyrights, trademarks, trade secrets or patents in connection therewith.
(b) Contractor hereby grants Production Company the right to alter, change, add to, take from, refabricate, reassemble and/or depict the Work in any manner Production Company may in its sole discretion determine. To the fullest extent allowable under any applicable law, Contractor (to the extent it has such rights) hereby irrevocably waives its so-called "moral rights" or "droit moral". If under any applicable law the above waiver by Contractor of "moral rights" or "droit moral" is not effective, then Contractor consents for the benefit of everyone throughout the world, to the doing of any and all past, present and future act or omission in relation to the Work of any kind and extent (including the making of material alterations to the Work including as incorporated in the Picture).
(c) Despite the provisions of clauses 5 (a) and (b), any moulds, schematic diagrams, designs, mechanical devices, processes, or application software which is owned by Contractor and existing prior to commencement of the Work and used as tools to create the Work (“Contractor Technology”) but which, for the avoidance of doubt, shall not include any Work made specifically for the Picture itself, shall remain the property of Contractor. Accordingly, if Contractor produces and/or manufactures any items based on new master moulds or designs at the request and direction of Production Company, such items shall be deemed the sole and exclusive property of Production Company, in perpetuity. Contractor shall not be permitted to use such master moulds or designs for any other projects without the prior written permission of Production Company in each instance. However, any master generic moulds or designs used in the Picture that existed in Contractor’s inventory prior to the Term will be deemed the sole and exclusive property of Contractor, excluding any customization of such moulds created at the request and direction of Production Company. To the extent necessary, Production Company is hereby granted an irrevocable, perpetual, royalty free licence in and to the Contractor Technology to the extent necessary to use, change, alter, reproduce, exploit, assign or licence the Work in connection with the production, distribution, exhibition, advertising and exploitation of the Picture.
(d) Contractor acknowledges and agrees that it shall not have any right to use any elements of the Picture (such as still photos or footage of the Work in the Picture) in its publicity, until after the initial theatrical release of the Picture incorporating the Work, and provided that Contractor has obtained the prior written consent of Production Company in connection therewith.
(e) Contractor hereby grants Production Company the right to shoot "behind the scenes" footage and to use Contractor's and the Sub-Contractors' names, likenesses and voices in publicity related photographs, "outtakes/behind the scenes" films, "electronic press kit(s)", video releases, and in connection with any development, production, advertising, publicity, publishing, merchandising, or exploitation of the Picture for no additional consideration, and Contractor hereby waives all rights of action with respect to any such use (including, but not limited to, claims for invasion of privacy, right to publicity, defamation, or any other claim arising out of a personal right).
[6.] Insurance: For the term of this Agreement, Contractor shall procure and maintain (and, if applicable, shall require all Contractor’s contractors to procure and maintain) insurance in accordance with Exhibit C attached hereto and made a part hereof. Upon execution of this agreement, Contractor (and, if applicable, Contractor’s contractors) shall provide certificates of insurance and policy endorsements (or the equivalent thereof) to Production Company evidencing said coverage and terms.statutory Employer’s Liability Insurance as well as Workmens Compensation for all Contractor’s employees or independent contractors.
Contractor shall also procure and maintain adequate insurance cover for the Works from the Effective Date until final delivery of the Work.
7. Representations/Warranties/Indemnities:
(a) Contractor hereby represents and warrants that: (i) all works and materials prepared or created by Contractor in the course of fulfilling its obligations under this Agreement and performing its services, shall be wholly original and shall not infringe upon the copyright or otherwise violate the rights of any third party (except to the extent based on material assigned to Contractor by Production Company); (ii) the Work shall be free from any and all claims, liens, judgments, or suits or any nature; (iii) no portion of the Work will impair or interfere with Production Company’s development, production, distribution and/or other exploitation of the Picture and the ancillary rights therein and thereto, as well as or any other rights granted to Production Company hereunder; (iv) in connection with the Work rendered by Contractor, said Contractor will not violate or infringe upon the trademark, trade name, copyright, patent, design or any other right of any other person, firm or corporation.
[(b)] Contractor shall indemnify, defend and hold harmless Production Company, its parent(s),
subsidiaries, licensees, successors, partners, divisions, subsidiary and affiliated divisions and related and affiliated companies, distributors, representatives, assigns and licensees, and their respective shareholders, directors, officers, employees and agents of the foregoing, and each of them, from and against any and all claims, liabilities, costs, damages or expenses (including, but not limited to, attorneys' fees and expenses) arising by reason of the breach or alleged breach by Contractor of any of its obligations, agreements, representations and/or warranties under this Agreement or resulting from its negligence or misconduct. Production Company shall indemnify and hold harmless Contractor from and against any and all claims, liabilities, costs, damages or expenses (including, but not limited to, reasonable attorneys' fees and expenses) for any claim arising out of Production Company’s breach of this Agreement or relating to Production Company’s development, production, distribution or other exploitation of the Picture or any element thereof, to the extent the claim is not subject to Contractor’s indemnities to Production Company hereunder.
(b)[(c)] Contractor represents and warrants that it is a corporation duly formed and validly existing in good standing under the laws of the country of South Africa and has the full right, power, legal capacity and authority to enter into and carry out the terms of this Agreement.
(c)[(d)] Nothing shall require or be construed as requiring Production Customer to indemnify, defend or hold Contractor, its agents or employees harmless from liability, loss, damage, or injury which results from the negligence or wilful misconduct of Contractor, its agents or employees.
8. Force Majeure: In the event the Picture or any part thereof is delayed, prevented, hampered, interrupted or interfered with in preparation, commencement, production or post-production or Production Company's business operations become commercially impracticable as a result of any Act of God; war; terrorist threat or activity; public health emergency; accident; fire; strike; lock-out or other labor controversy; riot; civil disturbance; act of public enemy; law, enactment, rule, restraint, order or act of any governmental instrumentality or military authority; failure or inability to obtain any necessary permit or license; failure of technical facilities; inability to obtain sufficient labor, technical or other personnel (including, without limitation, cast or crew members); failure, delay or reduction in transportation facilities or water, electricity or other public utilities; death; disability, disfigurement (with respect to cast and key crew only), or unavailability of or inability to obtain life, accident, cast, or health insurance for a principal
member of the cast, the director, or other Production Company of key crew member or inability to obtain visas, labor permits or other governmental licenses for any such persons could not by reasonable diligence have avoided or cured; or any cause beyond the control of Production Company (a "Force Majeure"), then Production Company shall have the right to suspend and/or terminate (as applicable) this Agreement by giving written notice to Contractor.
In the case of a suspension hereunder, Production Company shall be entitled to withhold and postpone payment of any compensation otherwise due to Contractor hereunder during the suspension, but not of any payment of compensation due up to the date of suspension provided that such suspension is not due to the gross negligence, willful misconduct and/or breach of this Agreement by Contractor. In the case of a termination, Production Company shall be obligated to pay only the compensation due up to the date of such termination provided that such suspension is not due to the gross negligence, willful misconduct and/or breach of this Agreement by Contractor. In the event Production Company terminates this Agreement pursuant to this paragraph, such termination shall become effective, and the parties shall be relieved of any further obligations hereunder (provided that Contractor's representations and warranties hereunder and all rights granted to Production Company hereunder shall survive such termination).
9. No obligation to Proceed : Production Company shall have no obligation to produce, complete, release, distribute, advertise or exploit the Picture, or to use any of the results and proceeds of Contractor’s Work, if produced, or to utilize Contractor’s Work in any manner.
10. Right to Terminate:
Production Company shall have the right to terminate this Agreement at any time for any reason whatsoever. In the event that Production Company terminates this Agreement for any reason, such termination shall become effective immediately. Except in the case of termination for a breach by Contractor, Production Company shall pay the compensation then due and owing under the payment schedule, as detailed in Paragraph 3 above, as adjusted pursuant to an accounting of the actual and verifiable charges incurred up to the date of termination. For the avoidance of doubt, in the event of termination (or expiration) of this Agreement, Paragraphs 5, 7, 11, 12, 13, 14, 15, 17, 18 and 19 shall survive.
11. Remedies:
(a) The parties agree that the services agreed to be rendered by Contractor under this Agreement are of a special, unique, unusual, extraordinary and intellectual character, which gives them a peculiar particular value, the loss of which cannot be reasonably or adequately compensated by damages in an action at law. Therefore, in the event of any breach of this Agreement by Contractor, in addition to any remedies at law, Production Company also shall be entitled to equitable relief, by way of injunction, interdict or similar remedy.
(b) No failure by Production Company to perform any of its obligations hereunder shall constitute a breach of this Agreement, unless Contractor has given Production Company written notice of such non-performance and Production Company fails to cure such non-performance within thirty (30) days of its receipt of such notice. If Production Company breaches any provision of this Agreement, Contractor agrees that the damage, if any, caused thereby or otherwise will not be irreparable or otherwise sufficient to entitle Contractor to injunctive or other equitable relief. Contractor’s remedies in any such event shall be strictly limited to the right, if any, to recover damages. Contractor shall not be entitled to rescind this Agreement, to restrain Production Company’s exercise of the rights granted hereunder, or to restrain, enjoin,
or otherwise impair the development, production, distribution, or exploitation of the Picture and/or any ancillary and/or subsidiary rights therein and thereto.
(c) The remedies herein provided shall be deemed cumulative and the exercise of any one shall not preclude the exercise of or be deemed a waiver of any other remedy, nor shall the specification of any remedy hereunder exclude or be deemed a waiver of any rights or remedies at law, or in equity, which may be available to Production Company, including any rights to damages or injunctive relief.
12. Settlement of Disputes: Without detracting, from either party’s right to institute action or motion proceedings in the High Court Western Cape Provincial Division, or other court of competent jurisdiction in respect of any dispute that may arise out of this Agreement, the parties may, by mutual consent, follow the mediation and arbitration procedure as set out in Paragraphs 12(a) and 12(b), below. The provisions of this Paragraph 12 are separate and severable from the rest of this Agreement and, accordingly, shall remain in effect despite the termination or invalidity for any reason of this Agreement.
(a) If a dispute arises out of this Agreement, the parties shall first attempt to resolve it by mutual agreement between a representative of Contractor and a representative of the Production Company. Should such agreement not be reached the dispute shall be referred by the parties without legal representation to a mediator. The dispute shall be heard by the mediator at a place and time to be determined by him or her in consultation with the parties. The mediator shall be experienced in the entertainment industry and be selected by agreement between the parties. If an agreement cannot be reached upon a particular mediator within 3 (three) business days after the parties have agreed to refer the matter to mediation, the matter shall be referred for mediation to the Arbitration Foundation of South African (“AFSA”). Subject to AFSA, the mediator shall at his or her reasonable discretion determine the mediation process.
(b) Subject to the provisions of Paragraph 13(a), a party aggrieved by the opinion of the mediator may demand to proceed to arbitration. Arbitration shall be held in Cape Town informally and otherwise in accordance with the provisions of AFSA within 30 (thirty) days after it has been demanded. Save as otherwise specifically provided herein, the arbitrator shall be if the matter in dispute is: (i) primarily a legal matter, a practicing Advocate of the Cape bar; (ii) any other matter, an independent and suitably qualified person as may be agreed upon between the parties to the dispute. If agreement cannot be reached on whether the question in dispute falls under (i) or (ii) above and/or upon a particular arbitrator within 3 (three) business days after arbitration has been demanded, then the President for the time being of the Law Society of the Cape of Good Hope shall determine whether the question in dispute falls under (i) or (ii) above; and/or nominate the arbitrator within 7 (seven) days after the parties have failed to agree. The arbitrator shall give his or her decision within 5 (five) days after the completion of the arbitration. The arbitrator may determine that the costs of the arbitration are to be paid by one or the other or by both of the parties. The decision of the arbitrator shall be final and binding.
(c) The parties agree that in any arbitration or court action pursuant to this Paragraph 12, in no event shall Contractor seek or be entitled to injunctive or interdict relief and the damages (if any) that may be awarded shall be limited to any actual damages suffered by a party.
13. Confidentiality : The Contractor hereby agrees to maintain the confidential nature of all matters relating to the Picture. The Contractor acknowledges and agrees that all the services rendered hereunder shall be Production Company’s confidential information. In addition, Contractor shall not make any recordings (including but not limited to photographs and video) of any part of the Picture. Contractor agrees not to make or authorize any news stories, blogs, articles, books or other publicity relating directly or indirectly to this Agreement, Contractor’s engagement hereunder, the subject matter hereof, or the Picture, without Production Company’s prior written approval in each instance. Among other damages, unauthorized disclosure of confidential or proprietary information will (i) damage Production Company’s carefully planned marketing, publicity, advertising and promotion strategies, (ii) reduce interest in the Picture, (iii) spoil viewers' experience, (iv) make unique or novel elements of the Picture susceptible to imitation or copying in other entertainment projects produced by third parties prior to the Picture’ release, (v) provide unauthorized third parties with the ability to make copies of the Program and (vi) provide unauthorized third parties with materials capable of
being used to create counterfeit and unauthorized picture-related merchandise; all of which will seriously limit Production Company’s revenues from exploitation of the Picture.
14. Publicity and Promotions: Production Company shall have the sole and exclusive right to issue publicity pertaining to the Picture and/or the Work. Contractor may issue publicity relating to the conduct of Contractor’s business which mentions Contractor’s involvement in the production of the Picture, provided that any mention of the Work or Contractor’s involvement in the Work must be approved in advance by Production Company in writing as to the content and timing of any such publicity.
15. Assignment : Production Company may assign this Agreement or all or any part of Production Company’s rights hereunder to any person or entity. This Agreement shall inure to Production Company’s benefit and to the benefit of Production Company’s successors and assigns. Contractor’s services shall not be delegated to any other person or entity and this Agreement is non-assignable in whole or in part by Contractor. Assignment by Production Company of this Agreement or its rights and obligations hereunder shall not be deemed an election to abandon the Picture.
16. Notices : All notices and payments to Contractor under this Agreement shall be sent by mail or registered post addressed to Contractor located at Unit 15 Apollo Park, Marconi Road, Montague Gardens, Cape Town, South Africa and all notices to Production Company under this Agreement shall be sent by mail or registered post addressed to Production Company located at 337 Lower Main Road, Observatory, Cape Town, South Africa 7925. The notice shall be deemed to have been duly given: 5 (five) days after posting, if posted by registered post; on delivery, if delivered to the party’s physical address as set on in this Agreement.
17. Governing Law : This Agreement shall be governed and construed in accordance with the South African Laws and, subject to clause 12, the exclusive jurisdiction of the High Court Western Cape Provincial Division.
18. Illegality of any provisions : Nothing contained in this Agreement shall be construed so as to require any illegal act. Insofar as any of the provisions contained in this Agreement are in conflict with any laws in the Republic of South Africa, or any other jurisdiction, from time to time in force, or any rules or regulations, including any applicable collective bargaining agreement and/or union rules and regulations, such provision shall be deemed to be amended only to the extent necessary to comply with the provisions of such laws, rules and/or regulations and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired and shall continue in full force and effect.
19. General :
(e) Waiver . No waiver by Production Company of any failure by Contractor to keep or perform any covenant or condition of this Agreement shall constitute a waiver of any preceding or succeeding breach of the same or any other covenant or condition.
(f) Further Documents. Contractor shall sign such additional documentation and do such further acts as Production Company may reasonably require in order to effect the purpose and intent of this Agreement.
(g) Faxed and PDF copies. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by facsimile or as a PDF document attached to an email shall be equally as effective as delivery of a manually executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by facsimile or as a PDF document attached to an email shall also deliver three (3) manually executed
counterparts of this Agreement but the failure to deliver such manually executed counterparts shall not affect the validity, enforceability, and binding effect of this Agreement.
(h) Entire Agreement : This Agreement shall constitute the entire agreement between the parties hereto and shall supersede any and all prior written or oral agreements between Production Company and Contractor relating to the subject matter hereof and cannot be amended or modified except by written instruments signed by the parties hereto.
SIGNED at ____________________ this___________day of_______________2014
FOR CFX PRODUCTIONS CC
Member who warrants that he/she is duly authorised thereto
SIGNED at ____________________ this___________day of_______________2014
PRODUCTION COMPANY
Directorwho warrants that he/she is duly authorised thereto
SCHEDULE ASPECIFICATIONS
SCHEDULE B
SCHEDULE
[ATTACH
EXHIBIT CSTANDARD INSURANCE REQUIREMENTS
Contractors – South Africa
A Certificate of Insurance is to be sent to the Risk Management Department of Moonlighting VWX Productions (Pty) Ltd reflecting the following insurance coverage:
Public Liability - R5,000,000. per occurrence R5,000,000. aggregate
Automobile Liability - Statutory Limits
**Workers' Compensation - Statutory Limits(or the equivalent thereof in the applicable territory)
Employer’s Liability - R1,000,000
“All Risk” Property and/or Miscellaneous Equipment coverage on all property rented/leased or owned as well as the Works for replacement cost value
Professional Liability - R5,000,000. per occurrence R5,000,000. aggregate
For all of these coverages except Workers’ Compensation, provide an endorsement naming Moonlighting VWX Productions (Pty) Ltd, its parent(s), subsidiaries, successors, licensees, related & affiliated companies, their officers, directors, employees, agents, representatives & assigns as Additional Insureds as their interests may appear and where applicable as loss payees as their interests may appear
A Thirty (30) Day written notice of cancellation, non-renewal or material reduction in coverage
The insurance carriers must be licensed in the applicable territory & have an A.M. Best Guide Rating of at least A:VII (or the equivalent thereof in the applicable territory)
CERTIFICATE HOLDER: Moonlighting VWX Productions (Pty) Ltd
10202 W. Washington Blvd., Culver City, CA 90232 Attn: Risk Management
** Not required if personnel payrolled by Moonlighting VWX Productions (Pty) Ltd ’s payroll services company
