- VEHICLE PROP HIRE
- Subject to the availability of vehicles (‘Vehicle Props’) for the required hire period (‘Hire Period’) Able Publishing cc t/a FilmAble Logistics & Supply CK 9844876/23 agrees to hire to Production Company (‘Prod Co’) certain Vehicle Props for the required Hire Period for the hire fee (‘Hire Fee’) as detailed in the accompanying Schedule subject to the further terms and conditions of this Agreement.
1.2 Additional Vehicle Props may be added as may be agreed to by the parties from time to time. In such event the parties agree to supplement Schedule to record such additions as may be required.
1.3 All Vehicle Props shall be delivered to Prod Co by FilmAble by a FilmAble nominated agent / broker or Vehicle Props handler (‘Handler’), who shall monitor the agreed use of the Vehicle Props hired under this agreement. The Handler shall be entitled to levy a fee for services rendered as specified in the Schedule. Any other fee for services by the agent / broker shall be negotiated separately between agent / broker and Prod Co.
2. USE OF VEHICLES
2.1 The Prod Co shall have the full and exclusive use, benefit and enjoyment of the Vehicle Props during the Hire Period, subject to the Standard Terms and Conditions set out herein.
2.2 The Prod Co acknowledges and accepts that the Vehicle Props are ‘props’ (as that term is understood in the film and commercials industry) provided strictly for use in a film or commercial shoot and as such may have certain limitations, shortcomings and may not be roadworthy. NOTE: Certain Vehicle Props are hired vehicles from car rental agencies, in terms of which certain conditions for use may be applicable. Such vehicles may not be adapted in any way or used for stunt purposes, without prior permission from FilmAble or its nominated agents / brokers.
2.3 Usage of the Vehicle Props shall at all times be limited strictly to the usages specified in the Schedule, it being understood that the Vehicle Prop is prepared and delivered based on this anticipated usage. No change to such usage shall be permitted without the express written permission of FilmAble.
2.4 The Vehicle Props shall be used only by Prod Co’s employees or agents qualified to use such Vehicle Props.
2.5 The Handler shall be granted access to the Vehicle Prop at all times and shall be entitled to monitor all usage of any Vehicle Prop. Any usage, equipment mounting, any driver, and all related aspects shall be subject to the approval of the Handler and / or Owner, as may be required. Should the Prod Co or any employee or agent refuse to comply with or respect the decision of the Handler, all risk associated with the use of the Vehicle Prop shall be for Prod Co’s account, and FilmAble shall not be liable for any claim or action, loss, or damage, consequential or other whatsoever for any such usage.
3. HIRE PERIOD, DELIVERY AND RETURN
3.1 The Hire Period shall commence and end on the dates specified in the Schedule. Notwithstanding the aforesaid, the Hire Period may be subject to change by the Prod Co, on notice to FilmAble, provided such dates are acceptable to and approved by FilmAble. In such event the Schedule will be updated by the Parties by agreement.
3.2 The Vehicle Props shall be delivered to the Prod Co by FilmAble or its nominated agent / broker on the date specified in the Schedule, or other date as agreed by the parties in terms of 1.1 above. Delivery outside a radius of 20 km’s of the Cape Town CBD may incur a delivery charge for travel at the prevailing AA rate.
3.3 Deliveries to different parts of the set and deliveries to different locations shall be arranged by the Handler or nominated agent / broker exclusively on behalf of FilmAble, who shall be entitled to charge a separate fee for such driving / delivery service, unless such is specified in the Schedule beforehand. The Handler and or nominated agent / broker shall not however be obliged to arrange for delivery to another location if same has not been agreed and specified in the Schedule, and may refuse to deliver same in circumstances where insufficient rest is available to the Handler or nominate agent / broker as detailed in clause 2.5. Certain vehicles may require special transport arrangements for delivery to another location, which may require logistical planning, for which a cost may be levied.
3.4 Where the Handler or nominated agent / broker agrees to drive and deliver a Vehicle Prop to such other location, Handler and or nominated agent / broker shall only do so, provided he is afforded a proper rest period, of not less than 8 hours, before being required to commence delivery of such vehicle, provided that Handler and or nominated agent / broker shall be entitled to an appropriate fee for the balance of the standard 10 hour turnaround time, namely 2 hours, at the customary increased hourly rate. Handler and or nominated agent / broker shall be provided with proper directions to the other location and shall not be liable for any delays for reasons outside of his control, such as traffic, accident or breakdown of the vehicle, provided that where the breakdown is due to a mechanical fault or accident FilmAble shall, where possible, arrange for a replacement vehicle to be provided for use at the other location, as soon as reasonably possible.
3.5 Driving of any Vehicle Prop outside of the agreed usage specification in the Schedule shall attract a fee, payable by Prod Co.
3.6 The Vehicle Prop shall be returned to FilmAble on the day following the last day of the Hire Period (or later time by prior agreement), in the same condition as that in which it left FilmAble premises, subject to reasonable wear and tear. Should a Vehicle Prop not be returned on time FilmAble shall be entitled to levy a late delivery fee, being no more than the equivalent of a day’s Hire fee, per day the vehicle is outstanding. It is recorded that the Vehicle Prop may be booked for use by another production company, outside of the agreed Hire Period. In order to prevent any issues, it is recommended that Prod Co rather reserves the hire of the Vehicle Prop for an additional day; however FilmAble shall nonetheless attempt to accommodate the Prod Co with any request for an additional Hire Period, where possible.
3.7 FilmAble shall, in the event the Vehicle Prop is not returned timeously, for whatsoever reason, be entitled to immediately re-possess such vehicle from Prod Co, without notice, and in this regard Prod Co indemnifies FilmAble from all costs occasioned, for such re-possession including attorney client costs, interest, collection costs, transport costs and any other consequential damages by virtue of FilmAble having to institute action to repossess the vehicle.
4. HIRE FEE AND HANDLER FEE
4.1 The Hire Fee is per vehicle unless otherwise quoted and specified in the Schedule. Any additional costs pertaining to the Vehicle Prop, in accordance with the productions requirements, such as the installation of racks, or other attachments, or any other modifications to the Vehicle Prop shall require the prior approval of FilmAble, and shall be for the account of the Prod Co. Such costs shall include the cost to restore the Prod Vehicle to its original state. FilmAble shall be entitled to request a deposit to cover the costs of such modifications and the restoration of the vehicle.
4.2 Fuel cost for Drivable Vehicle Props shall be for the account of Prod Co.
4.3 The Hire Fee for the use of the Vehicle Props and for the services of the Handler shall be paid by the Prod Co on receipt of an invoice from FilmAble. 50% of such invoice shall be payable on delivery with the balance payable strictly on completion of the Hire Period. Interest at prime plus 2% may be charged on all overdue accounts.
4.4 A cancellation fee (Cancellation Fee) of 100% of the total Hire Fee invoice, shall be payable by Prod Co, should the Prod Co cancel the hire within 48 hours of the commencement of the Hire Period, unless otherwise agreed.
4.5 The Handler’s fee and or the nominated agent / broker’s fee shall include any accommodation costs and a per diem should the Handler be required to stay overnight due to the needs of the production. The Handler’s fee and the nominated agent / broker’s fee shall include an hourly fee for time spent on set, in keeping with Crew standard terms and conditions. Overtime shall be applicable and chargeable for the Handler’s time, and shall be invoiced by FilmAble, and in the instance of the nominated agent / broker shall be invoiced separately. The Handler shall not be required to provide services in excess of the crew standard terms and conditions. Overtime, rest periods, meals and the like shall be granted and provided to the Handler, as per other Crew. Prod Co shall provide FilmAble with a copy of the applicable Crew standard terms and conditions, failing which FilmAble shall be entitled to charge rates as reasonably determined by it.
4.6 A security deposit may in certain circumstances be required by FilmAble, before delivery of any Vehicle Prop.
5. INSURANCE
5.1 Prod Co shall be responsible for all insurance cover in respect of any Vehicle Prop hired for the Hire Period, which shall include all vehicle replacement costs and all liability for any injuries or accidents and related costs occasioned by use under the terms of this agreement, and as further specified herein. FilmAble shall be entitled to require proof of insurance and a certain minimum level of insurance cover in place, prior to delivery of any Vehicle Prop. Should the level of insurance cover provided by the Prod Co be insufficient then FilmAble reserves the right to purchase any additional insurance it may require for the length of the Hire Period, and to charge such cost to Prod Co. Any insurance claims pertaining to any Vehicle Prop shall be subject to an administration and handling fee. Down day rental at 50% of the daily rate will be charged for each day the owner/supplier does not have his vehicle due to repairs on insurance claim.
5.2 FilmAble shall not be responsible for any consequential loss or damage resulting from any mechanical or structural defect or breakdown or accidental damage of the Vehicle Prop, during the Hire Period. FilmAble shall however prior to delivery to Prod Co inspect the vehicle and undertake any routine or necessary maintenance reasonably identified, and shall where possible endeavour to provide a replacement vehicle to Prod Co, or repair the vehicle, at its sole discretion, as soon as possible.
5.3 Prod Co shall look after and be responsible for the Vehicle Props when same is in its control or the control of Prod Co’s agents, employees, crew or cast (including Stunt Artists) or is being used on set, or is being used by the Prod Co and any of the aforesaid outside the course and scope of the production of the Film.
5.4 The Prod Co shall ensure that it has in place adequate health and safety measures in keeping with industry standards in order to ensure the safety of the driver of the vehicle against injury or accident. When a Stunt Artist (as that term is understood in the industry) is engaged, Prod Co shall ensure that it has engaged, complied with all safety and risk assessment requirements prior to the performance of the stunt, and shall as part of this process liaise with the Handler with respect to the usage of the Vehicle Prop, in order to understand and limit any risks. FilmAble shall not be responsible or liable for any damage, injury or death occasioned by any Stunt Artist using the Vehicle Prop in any manner, such being the sole and exclusive responsibility of the Prod Co or Stunt Artist, as the case may be.
5.5 FilmAble’s liability for any claim shall at all times be limited to the total of the Hiring Fees, specified in this Agreement
6. REPAIRS
6.1 All damages, excluding reasonable wear and tear and use of the vehicle for the purposes specified herein, to any Vehicle Prop during the Hire Period shall be for the account of the Prod Co. Where a Vehicle Prop is damaged so that it can no longer be used for purposes of the production, Prod Co shall, along with any costs of repair, remain liable for the Hire Fee, as set out in the Schedule.
6.2 On return of the Vehicle Prop to FilmAble, FilmAble shall assess any actual damage and shall shortly thereafter provide Prod Co with a written list specifying the actual damage and a quotation to repair same. Prod Co shall be entitled to inspect the alleged damage, on receipt of the aforesaid list. In the event the actual damage was occasioned by Prod Co, Prod Co shall pay to FilmAble the reasonable cost of repairs, provided that Prod Co shall be entitled to obtain a second quotation for such repairs, in order to establish reasonable costs. If the vehicle is beyond repair, Prod Co shall pay for the replacement of the vehicle. Additionally, Prod Co shall be responsible for any consequential costs incurred by reason of FilmAble not being able to hire out the Vehicle Prop, for the duration of such non-use
7. WARRANTY
7.1 FilmAble warrants that it is the legal owner or authorized representative of the Vehicle Prop and that it is authorized to enter into this Agreement. Similarly, the Prod Co warrants that it is authorized and capable of entering into this Agreement.
8. BREACH
8.1 Should any of the parties (“the defaulting party”) to this agreement breach any of the provisions of this agreement and the breach is material and the defaulting party fails to remedy that breach within 7 (seven) days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of this agreement or at law, to terminate this agreement.
8.2 The termination of this agreement, for whatever reason, will not affect the rights of such party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of this agreement.
9. INDEMNITIES
9.1 The Prod Co indemnifies FilmAble and its representatives, and holds them harmless, against all claims, losses or liabilities, by any party for damages as a result of personal injury and/or death occasioned by the use of the Vehicle Props provided in terms of this Agreement, the Prod Co being aware of and agreeing to assume the risk of all such use. The Prod Co acknowledges that the vehicles supplied under the terms of this Agreement constitute props for purposes of filming and may not be roadworthy or licensed vehicles. As such certain precautions and measures are needed when using such props, including obeying the specific instructions and directions of any on-set advisor and / or Handler.
10. PERMISSION TO USE VEHICLE PROP
10.1 FilmAble for good and valuable consideration hereby irrevocably grants to Prod Co and its assigns and licensee’s permission to make use of the Vehicle Prop in any television, film, photography, commercial or other audio visual presentation, and any further / other medium form or format now known or hereafter devised, in or by which the Vehicle Prop or any part thereof has been wholly or partly utilized, recorded or captured, including any reproduction or adaptation of the Vehicle Prop and shall also include any sounds captured or recorded during such utilization, and the provision of all services provided by FilmAble, any of its Handler’s and any other employee or other person engaged by FilmAble, pursuant to any engagement under the terms of this Agreement.
10.2 For the avoidance of doubt, FilmAble hereby grants Prod Co, its agents, affiliates, licensees and assigns the sole and exclusive right title and interest throughout the world in all languages in perpetuity to utilize and to exploit all or any part of the filmed and recorded Vehicle Prop and any associated services constituting FilmAble’s work product (‘Work Product’), in any media form or format, whether now know or hereafter devised, including, without limitation, the sole and exclusive right in perpetuity to use, publish, exploit, improve, amend, modify, fiddle, reproduce in any manner (including sequels or prequels), perform, exhibit, or otherwise deal with the Work Product in connection with the advertising and exploitation of same in all media, form or format whether now known or hereafter devised, and in so far as it is necessary herewith in addition assigns and transfers to Prod Co, all rights, title and interest to all such Work Product and the results and proceeds of FilmAbles services as contemplated by this agreement.
10.3 All so called rental and lending rights under national laws or any other rights granted, transferred, conveyed or otherwise conferred upon FilmAble, whether under the laws and/or regulations of any jurisdiction or territory throughout the world, as an author of the Film or other medium, or otherwise in and to the Film or other medium, shall be deemed waived, transferred, granted and/or assigned to the Prod Co and any assigns hereunder and the consideration set forth herein to FilmAble shall be deemed equitable remuneration for any such rights.
10.4 In addition, the Prod Co, it’s agents, affiliates, licensees and assigns shall have the right in perpetuity and throughout the universe to:
- use and display both FilmAble’s name, license, photographs (either still or moving) for all and any commercial, advertising, promotional and publicity purpose in any and all media now known or hereafter devised;
- otherwise exploit any scenes or photographs containing the Work Product for all and any commercial, advertising, promoting, publicizing of the Prod Co;
- utilize in the Prod Co’s sole discretion the Work Product in any other production, form or format and in all and any media now known or hereafter devised as well as all subsidiary, incidental, allied and ancillary rights connected thereto including but now limited to utilizing the Work Product in any production, form or format and whether altered, reworked, touched up, dubbed, edited or added to in any manner whatsoever and whether imperfect or defective in any way;
- make visual and audio-visual fixation and reproductions of the Work Product; or
- to represent or portray the Work Product in such a manner as the Prod co in its sole discretion may determine without the prior consent of FilmAble.
10.5 Nothing contained in the Agreement shall be construed so as to place an obligation on the Prod Co, its agents, affiliates, licensees and assigns to use the Work Product or any part of the Work Product at any time.
10.6 For the avoidance of any doubt FilmAble waives any “moral rights” it or any employee of FilmAble may have to the Work Product.
10.7 FilmAble shall ensure that the rights provision with respect to any Work Product, as set out in clause 9 hereof shall equally apply to any personnel (employee or third party FilmAble) engaged by FilmAble and in this regard the indemnifies Prod Co from any claim instituted by such person to the extent of the claim and any legal costs occasioned by virtue of such claim.
11. CONFIDENTIALITY
11.1 FilmAble undertakes to keep confidential any information received pertaining to the production, including the making of the film, commercial or television programme as the case may be, cast, crew, budgetary or financial matters, story or script (effectively all aspects of the production) and FilmAble agrees not to furnish such confidential information to any third party or any media or social media platform, save only as necessary to its professional advisors (attorneys, accountants, etc.) or otherwise as may be required by law.
12. CREDIT
12.1 Subject to the performance of FilmAble under this agreement, and the Vehicle Prop being utilized Prod Co shall afford FilmAble with a credit in the Film, the size, style and position of which to be determined by Prod Co.
13. CONTINUATION OF CONTRACTUAL RIGHTS
13.1 Notwithstanding the termination of this agreement under the provisions provided for in this agreement, certain rights and contractual provisions shall continue unaffected, including the rights and provisions provided for in clauses 9, 10 and 11.
14. JURISDICTION
14.1 This agreement shall in all respects be governed and interpreted according to the laws of South Africa.
14.2 Any dispute affecting this agreement between the parties shall be determined by way of arbitration through AFSA (or its equivalent) to be held in Cape Town.
14.3 FilmAble’s sole remedy against the Company or its Client, shall be a claim for damages and a possessory order (or vindicatory action) as pertains to the Vehicle Prop, if any, and FilmAble shall not be entitled to any interdictory or injunction relief or any order restraining or limiting Prod Co from the pre-production, production, distribution or exploitation of the production.
15. NATURE OF RELATIONSHIP
15.1 The parties specifically acknowledge that the relationship between them as contained in this agreement, and otherwise is one of independent contractor. Neither does this agreement constitute a joint venture or partnership between the parties.
16. GENERAL
- Entire Contract
This agreement and its schedules contain all the express provisions agreed on by the parties with regard to the subject matter of the agreement and the parties waive the right to rely on any alleged express provision not contained in the agreement. Where there is any conflict between FilmAbles terms and conditions and any other agreement the provisions of this agreement shall apply.
- No Representations
No party may rely on any representation, which allegedly induced that party to enter into this agreement, unless the representation is recorded in this agreement.
- Variation, Cancellation and Waiver
No contract varying, adding to, deleting from or canceling this agreement, and no waiver of any right under this agreement, shall be effective unless reduced to writing and signed by or on behalf of the parties.
- Cession
Prod Co shall be entitled to cede and delegate its rights and obligations (in whole or in part) provided that Prod Co shall jointly remain liable for any obligations under the terms of this agreement. FilmAble shall not be entitled to cede or delegate any rights or obligations without the prior written consent of the other party.
16.5 Illegality of any provisions
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 are contra bona mores and as such unenforceable, such provision shall be deemed to be amended only to the extent necessary to comply with the provisions of such laws or provisions and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
17. DOMICILIUM AND NOTICE
17.1 The parties hereby choose as their domicilium citandi et executandi and notice address for purposes of this agreement the addresses as provided for in the Schedule to this Agreement.
17.2 A party may change that party’s address for this purpose to another physical address in the Republic of South Africa, by notice in writing to the other party.
17.3 Notice may be hand delivered or delivered by registered mail to the address provided above. Registered mail shall be deemed delivered after 5 days of posting, whereas hand delivery shall be deemed delivered on the day of delivery, and email on the day plus one after the mail has been sent.
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