1.1 In these Terms, unless the context clearly indicates otherwise, the following terms have the following meanings:
1.1.1 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.
1.1.2 Assigned Materials means the Productions excluding any deliverables or parts of them which are Third-Party Materials, which will be licensed to the Client.
1.1.3 BlueAvo Content has the meaning given to it at clause 7 of these Terms.
1.1.4 BlueAvo Fee means the amount payable by the Client to us as specified via the Platform and/or our invoice (being the total Budget minus the Creator Payment).
1.1.5 Brief means a creative brief setting out a Client's Production requirements posted on or via the Platform.
1.1.6 Broadcast Media means all broadcast media including television advertising, sponsorship indents, cinema, news programmes and new media (including any other broadcast media not now known or to be created in the future).
1.1.7 Budget means the total budget for a Production and includes the BlueAvo Fee and the Creator Payment.
1.1.8 Client means a party registered through the Platform that wishes to commission a Creator to complete a Production using the Platform.
1.1.9 Client Assets means images, audio/audio-visual content, scripts, screenplay, advertising or campaign materials, publications, music, documents, software, information, literary material, any logo, trade mark or indicia, and/or other materials provided by the Client, (including materials which may be or are ordinarily subject to Intellectual Property rights, or which constitute a trade secret or form of know how and any information which may constitute Confidential Information), for inclusion in Responses and/or use in the fulfilment of Briefs.
1.1.10 Communication has the meaning given to it at clause 8.6 of these Terms.
1.1.11 Confidential Information means, without limiting the generality of the term, any and all proprietary information, know-how, business processes or trade secrets of a technical, scientific, commercial, financial and/or confidential nature (however recorded or preserved) and all other information in whatever form, whether subject to or protected by common law or statutory laws relating to copyright, patent, trade marks, registered or unregistered, or otherwise, disclosed or communicated, directly or indirectly, by a Disclosing Party to a Recipient Party or acquired by the Recipient Party from the Disclosing Party orally or in writing, including but not limited to any Intellectual Property or information that would be regarded as confidential by a reasonable business person unless the information: (i) is public knowledge; or (ii) is already known to the recipient party at the time of disclosure; or (iii) subsequently becomes public knowledge other than by breach of these Terms or a Contract; or (iv) subsequently comes lawfully into the possession of the recipient party from a third party; or (v) is required to be disclosed under any applicable law.
1.1.12 Content means any textual, visual or aural content, including photographs, videos, information, materials, opinions and/or statements, that is encountered and/or used as part of any user’s experience of the Platform, including (without limitation) any BlueAvo Content or content uploaded by any user.
1.1.13 Content Standards means the content standards set out at clauses 8.2, 8.3 and 8.4 of these Terms.
1.1.14 Contract means the contract formed between a Client, a Creator and us in accordance with the terms and conditions set out in these Terms.
1.1.15 Creator means any person registered through the Platform who wishes to submit Responses and produce Productions through the Platform, including, but not limited to, filmmakers, photographers, directors, editors, designers, animators, production companies or producers.
1.1.16 Creator Payment means the amount specified in a Brief payable to a Creator (being the total Budget minus the BlueAvo Fee).
1.1.17 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 in these Terms.
1.1.18 Force Majeure Event means any event or circumstance in each case which is beyond the reasonable control of the affected party, including (without limitation), strike, lockout or other industrial action, act of God (including severe weather events), act of terrorism, war, act of government or political or civil disturbance, epidemic, pandemic or lockdown related to an epidemic or pandemic.
1.1.19 Intellectual Property means all and any intellectual property of whatsoever nature, and in whatsoever form, arising anywhere in the world, including, without limitation, all and any creations of the mind that are recognised and/or capable of being protected by law from use by any other person, and all rights resulting from or attributable to such intellectual activity, whether acquired or protected by statute or common law and whether in terms of applicable laws in any jurisdiction, and including (without limitation): trade marks, service marks, logos, trade and business names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, copyright (including, without limitation, copyright in computer software, computer programs and data bases) and related rights, domain names, designs (including registered designs), patents, petty patents, utility models, topography rights and like rights (including applications for the grant of any of the aforementioned) inventions, know-how, Confidential Information, business information and trade secrets, data base rights, applications for registration, and the right to apply for registration, for any of these intellectual property rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all rights or forms of protection having similar or equivalent or similar effect to any of the aforementioned, which may subsist in any country in the world.
1.1.20 Licence has the meaning given to it in clause 26.1of these Terms.
1.1.21 Overages means any additional costs and fees incurred by a Creator on top of the original Creator Payment, where such costs were incurred with the Client's prior written approval.
1.1.22 Platform means our platform located at BlueAvo.com including our mobile application.
1.1.23 Print Media means all printed PR, press, magazines, newspapers, textbooks, out of home (OOH), digital out of home (DOOH), below the line (BTL), point of sale (POS), packaging, direct mail, trade shows and kiosks.
1.1.24 Privacy & Cookies Policy means our privacy and cookies policies located at blueavo.com/privacy.
1.1.25 Production means the production to be produced in accordance with a Brief, including but not limited to, graphic, audio or audio-visual productions.
1.1.26 Production Contracts has the meaning given to it in clause 27.16.
1.1.27 Raw Files means rushes or raw, unedited video footage or images captured during a Production.
1.1.28 Response means a Creator's creative response submitted via the Platform to a Brief.
1.1.29 Response Deadline means the deadline for the receipt of Responses specified in the relevant Brief.
1.1.30 Taxes means any value-added tax, sales tax, goods and services tax, withholding tax, or other tax, levy, duty, impost, charge or fee.
1.1.31 Third-Party Materials means any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Production, including library images, and any pre-existing Intellectual Property rights of the Creator.
1.1.33 Union has the meaning given to it in clause 27.22 of these Terms.
1.1.34 you or user means any user of the Platform, and includes (without limitation) any Client or Creator.
1.2 Important. Where these terms have been translated to help with local language understanding, the English version of BlueAvo's terms available at blueavo.com/terms shall always prevail.
2. These Terms
These Terms govern your relationship with BlueAvo Pty Ltd, Registration No. 2019/622928/07, whose registered office is at Clock Tower, V&A Waterfront, Cape Town, South Africa, 8000, (we, our, us, BlueAvo) when you use the Platform and apply to your use of the Platform. Use of the Platform includes, amongst others, accessing or browsing the Platform as well as posting Briefs and Responses and receiving or providing Productions. Please refer carefully to the relevant sections of these Terms before you start to use the Platform. By using the Platform, you (including, where applicable, the organisation you represent) will be deemed to have understood these Terms, and constitutes your (including, where applicable, the organisation you represent) acceptance of the Terms, which form a binding agreement between you and us and/or may form a binding agreement between Creators, Clients and us.
2.1 Please read these Terms carefully before using the Platform.
2.3 Where we are obliged under applicable law to provide the user with a cooling-off period, or any other right, and such right is not expressly included in these Terms, the user shall be entitled to exercise such right in accordance with applicable law, notwithstanding anything to the contrary in these Terms (subject to any conditions that we are permitted to impose under applicable law).
3. Information About Us
3.1 www.blueavo.com is a website operated by us. We are registered in the Republic of South Africa under the name BlueAvo Proprietary Limited, with company registration number 2019/622928/07 and with our registered office at 1 Dunbar Flats, 22 Athens Road, Cape Town.
3.2 If you have questions concerning the Terms, please contact us via email at email@example.com.
4. Changes to These Terms
4.1 We may revise all or part of these Terms (including by way of Additional Terms or policies) at any time by amending the relevant pages of the Platform. If you continue to use the Platform following receipt of such notice, you will be deemed to have accepted our revision of these Terms. You are expected to check the pages from time to time in order to take notice of any changes we make, as they are legally binding on you from date of posting. It is your responsibility to check this page on a regular basis to ensure that you are aware of these Terms, as updated from time to time.
4.2 4.2 The Terms constitute the entire agreement between BlueAvo and you in respect of your use of the Platform, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between BlueAvo and you in respect of your use of the Platform, whether written or oral, relating to its subject matter, including but not limited to any and all prior versions of the Terms that may have been published on the Platform.
5. Changes to the Platform
We may update and modify the Platform from time to time, and may suspend, withdraw, discontinue, or change all or any part of the Platform, the BlueAvo Content on the Platform, including that we may remove any Content from the Platform, at any time. Please note that any of the Content on the Platform may be out of date at any given time and at our sole discretion, and we are under no obligation to update it. We do not warrant or guarantee that the Platform or any Content will be free from errors or omissions.
6. Accessing the Platform and Registration
6.1 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.
6.2 You must be over the age of 18 to use the Platform. By using the Platform, you represent and undertake that you are over the age of 18.
6.3 In order to register to use the Platform you must be at least 18 years of age. By registering to use the Platform, you represent and warrant that this is the case. Without prejudice to the foregoing, if reasonably requested by us or if required by a Client in relation to use of a particular aspect of the Platform, you agree to promptly provide us and/or the relevant Client with a certified copy of government issued ID verifying your identity including but not limited to your age, photo and address.
6.4 You agree that you will provide truthful and accurate information when registering to use the Platform. The decision to accept a registration is at our discretion and we may revoke a registration at any time.
6.5 You may not register to use the Platform if you are already registered or if you were previously a registered user and we cancelled your account as a result of you being in breach of these Terms.
6.6 To register to use the Platform, you must provide us a unique username and password and provide us with certain personal information. You are responsible for maintaining the confidentiality of your username, password and account information and you must not disclose same to any third party. 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.
6.7 We have the right to disable any username or password at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms.
6.8 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.
6.9 You are responsible for ensuring that the information we hold about you is up to date. Please amend your details via the Platform as appropriate from time to time or contact us if you require assistance.
6.10 Please refer to our Privacy & Cookies Policy for further explanation as to how we use the personal information we collect from you.
6.11 The Platform is made available to users. We do not guarantee or warrant that the Platform, (including any Content), will always be available or be uninterrupted. Access to the Platform, is permitted on a temporary basis. We may suspend, withdraw, discontinue or change all or any part of the Platform, or Content without notice. We will not be liable to you if for any reason the Platform, or any Content is unavailable at any time or for any period.
7. BlueAvo Intellectual Property and Content
7.1 You acknowledge that all Intellectual Property rights in and to the Platform and all material published or displayed on the Platform, or is encountered and/or used as part of any user’s experience of the Platform, including but not limited to text, graphics, photos, logos, button icons, images, trade marks, audio and audio visual clips, databases, data compilations, data and software (but excluding any content uploaded by users of the Platform) (together the “BlueAvo Content”) are owned by or licensed to us. Those works are protected by Intellectual Property rights laws and treaties around the world. All such rights are reserved.
7.2 You may not copy, adapt, display, communicate to the public, share, modify, download, print or otherwise use any Content except as enabled and permitted by the Platform from time to time.
7.3 Unless otherwise expressly provided to the contrary in these Terms or any Contract:
7.3.1 You may not use or register any trade marks, trade names or other devices which are or incorporate marks which are substantially identical or deceptively similar to our or any other user’s trade marks or which marks are likely to be associated with the trade marks or where such use would take unfair advantage of or be detrimental to the distinctive character or the repute of our or any other Client’s or Creator’s trade marks.
7.3.2 You may not at any time, directly or indirectly, do or cause to be done any act or thing in any way impairing or tending to impair, weaken, damage or be detrimental to any part of our, or any other user’s, rights, title and interest in and to the relevant Intellectual Property owner’s Intellectual Property, or the reputation and goodwill associated therewith.
7.3.3 You may not in any way, directly or indirectly, make unauthorised use of our Intellectual Property, or any other user’s Intellectual Property or represent that you have any rights of any nature in such Intellectual Property or any registrations thereof.
7.3.4 You must not directly or indirectly, copy, republish, distribute, adapt, modify, alter, decompile, reverse engineer, or attempt to derive the source code of or create a derivative of works or otherwise attempt to reproduce the paper or digital copies of any Content or other materials you have printed off, obtained or downloaded from our Platform in any way, and you must not use, share or edit any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text, or without obtaining the required consents or licenses and acknowledging the source of such Content.
7.3.5 The status of the contributors of Content as the authors of Content must always be acknowledged.
7.3.6 You must not use any part of the Content for commercial purposes without obtaining a licence to do so from us or our licensors.
7.4 Without limiting the generality of the provisions of clause 7.3. above you undertake not to make any unauthorised use, reproductions or copies of any Content, work or material, displayed or made available on the Platform, whether directly or indirectly, and to adhere to and comply with all policies, conditions of use and rules that may apply to the use of such work or material.
7.5 If you share, modify, edit, copy, republish, distribute, adapt, modify, alter, decompile, reverse engineer, download, print off, or use in any other way, any part of the Platform or Content in breach of the Terms, your right to use the Platform will cease immediately and you must return or, if so instructed, destroy any copies of the materials, the Platform or Content that you have made.
7.6 You acknowledge that “Africa’s Creative Marketplace” is our pending trade mark application in South Africa.
8. Your Use of the Platform and Content Standards
8.1 You are responsible for making all arrangements necessary to access the Platform. You are also responsible for ensuring that all persons who access the Platform through your internet connection are aware of these Terms and that they comply with them.
8.2 The following standards (“Content Standards”) apply to your use of the Platform (including any linking to the Platform, posting of Briefs, responses or other communications and use of any review/feedback/grievance submission mechanism on the Platform).
8.3 Without limitation, you may not use the Platform, directly or indirectly:
8.3.1 in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
8.3.2 for the purpose of harming or attempting to harm any natural or juristic person, and in particular any minors, in any way;
8.3.3 to send, knowingly receive, upload, download, publish, use or re-use any material which does not comply with the Terms;
8.3.4 to send, or procure the sending of, any unsolicited or unauthorised electronic communication, advertising or promotional material or any other form of similar solicitation (spam);or
8.3.5 to knowingly transmit any data or send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of the Platform or any computer software or hardware.
8.4 You also agree not to, directly or indirectly:
8.4.1 make unauthorised use of, adapt, reproduce, duplicate, copy, modify, alter, decompile, reverse engineer, or attempt to derive the source code of or create a derivative of works or otherwise attempt to reproduce the Platform or its Contents or re-sell any part of the Platform (or any Content within it) in contravention of these Terms; and
8.4.2 access without authority, interfere with, damage or disrupt: (A) any part of the Platform or Content; (B) any equipment or network on which the Platform is stored; (C) any software used in the provision of the Platform; or (D) any equipment or network or software owned or used by any third party.
8.5 The Platform may include information and materials uploaded by other users, including (without limitation) Briefs, Responses or posts to comment boards and discussion forums. This information and these materials have not been verified or approved by us. The views expressed by other users on the Platform do not represent our views or values. To the maximum extent permitted by applicable law, you acknowledge that you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Platform at your own risk.
8.6 Whenever you make use of the Platform to allow you to upload Content to the Platform or make contact with other users of the Platform (each a “Communication”) you grant us a non-exclusive, royalty-free, worldwide, perpetual licence to host, copy, reproduce, store and make available such Content and Communication and agree to comply with the Content Standards. Unless otherwise expressly stated in these Terms, any Content you upload to the Platform will be considered non-confidential and non-proprietary, unless otherwise specified by you, and you retain all of your ownership rights in your Content,
8.7 Subject to applicable law, we have the right to disclose your identity to any third party who is claiming that any Content or Communication posted or uploaded by you to the Platform constitutes a violation of their Intellectual Property rights, or of their right to privacy. We have the right to remove any posting you make on the Platform if, in our sole opinion, your post does not comply with the Content Standards. You are solely responsible for securing and backing up your Content.
8.8 You must comply with the Content Standards. The Content Standards apply to each part of any Content uploaded to the Platform and Communication, as well as to its whole.
8.9 Communications must be accurate (where they state facts), be genuinely held (where they state opinions), and comply with applicable law.
8.10 Communications must not: contain any material which is defamatory of any person; contain any material which is obscene, offensive, hateful or inflammatory; promote or contain sexually explicit material; promote or contain violence; include gang signs or symbols; promote or contain discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; infringe any copyright, trade secret/know how, database right or trademark of any other person; be likely to deceive any person; be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence; promote any illegal activity; be threatening, be abusive, harmful, vulgar, seditious or otherwise objectionable; abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety; be likely to harass, vilify, upset, embarrass, alarm or annoy any other person; be used to impersonate any person, or to misrepresent your identity or affiliation with any person; give the impression that they emanate from us or are endorsed by us, if this is not the case; breach any applicable law; or advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
8.11 To the maximum extent permitted by applicable law, you warrant and undertake that any such Communication complies with the Content Standards, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of such warranty. We will not be responsible, or liable to any third party, in respect of the content of any Communication.
8.12 To the maximum extent permitted by applicable law, you acknowledge that your Communications (including but not limited to any Briefs, Responses and Productions) may be subject to criticism and/or review by the public and as such may receive positive or negative comments and reactions, and we are not responsible for any such review or comment or any consequences relating to the same.
8.13 To the maximum extent permitted by applicable law, you acknowledge that:
8.13.1 you are responsible for your interactions with other users;
8.13.2 we make no representations or warranties as to the conduct of other users; and
8.13.3 we shall not be in any way liable for the conduct of you or any other users. You indemnify us against any and all losses, damages, costs or expenses (whether direct or indirect) which we may suffer or incur and all and any claims which may be brought against us by any third party in respect of any loss, liability (whether actual, contingent, or otherwise), damage, costs and expenses of any nature whatsoever as a consequence of or which may arise from or be attributable to your breach of any of the provisions of any Content Standard, these Terms or any act or omission by you.
8.14 You agree to take reasonable precautions in all interactions with other users. Notwithstanding any other provision of these Terms and to the maximum extent permitted by applicable law, the parties acknowledge and agree that:
8.14.1 any information published on the Platform (including, without limitation, Briefs and Responses) (the “Platform Information”) will be available to users of the Platform;
8.14.2 the publication of Platform Information by BlueAvo will not amount to a breach of any of BlueAvo's obligations under these Terms; and
8.14.3 if you disclose your Confidential Information to another party on or via the Platform/BlueAvo and you wish to impose obligations of confidence on the other party in relation to such information, you should enter into a separate confidentiality agreement with the other party.
8.14.4 If you wish to register a complaint concerning a user of the Platform, please contact us (or, in respect of Intellectual Property infringement, pursuant to the section below).
8.15 To the maximum extent permitted by applicable law, you warrant that, prior to uploading any Communications whatsoever, all necessary consents and/or approvals have been obtained from the person in respect of whom the Communication relates and/or any governmental authority required to approve the disclosure of such Communication.
8.16 Failure to comply with the Content Standards, constitutes a material breach of the Terms upon which you are permitted to use the Platform, and may result in immediate, temporary or permanent withdrawal of your right to use the Platform and our taking further legal action against you.
9. Copyright Infringement - Takedown Procedures
If you believe that any materials on the Platform infringe your copyright or other Intellectual Property right, you may request that such materials be removed. This request must bear a signature (or electronic equivalent) of the copyright or Intellectual Property holder or an authorised representative, and must:
9.1 identify the allegedly infringing materials;
9.2 indicate where on the Platform the infringing materials are located;
9.3 provide your name and contact information;
9.4 state that you have a good faith belief that the materials are infringing;
9.5 state that the information in your claim is accurate; and
9.6 indicate that you are the lawful copyright or Intellectual Property owner or are authorised to act on the owner's behalf.
9.7 We may still consider the request if the above information has not been provided, but we may contact you for additional information before deciding to remove any reportedly infringing materials.
9.8 If you believe that someone has wrongly filed a notice of copyright or Intellectual Property infringement against you, you may send us a counter-notice in accordance with equivalent requirements.
9.9 Our contact details for copyright or Intellectual Property issues relating to the Platform (including, but not limited to, the notices and counter-notices) is firstname.lastname@example.org.
9.10 Please note that in many jurisdictions it is an offence to issue a false or misleading request or notice to take down allegedly infringing materials. Penalties and/or civil remedies under applicable law may apply.
10. Availability of the Platform
10.1 To the maximum extent permitted by law, the Platform is provided on an "as is" basis without any warranties of any kind. We make no representations, warranties or guarantees of any kind regarding the availability or operation of the Platform or that the Platform will be secure, uninterrupted or free of defects.
10.2 Your access to the Platform may be suspended or restricted occasionally to allow for maintenance, repairs, upgrades, or the introduction of new facilities or services. We will always try to limit the frequency and duration of any planned disruption but we will to the maximum extent permitted by law not be liable to you if for any reason the Platform is unavailable at any time or for any period.
11. No Reliance On Information
11.1 The Content on the Platform is provided for general information only. It is not intended to amount to advice upon which you should rely. You must obtain professional or specialist advice before taking or refraining from, any action on the basis of any Content on the Platform.
11.2 Although we make reasonable efforts to update the information on the Platform, to the maximum extent permitted by applicable law we make no representations, warranties or guarantees, whether express or implied, that the Content on the Platform is accurate, complete or up-to-date.
11.3 The Platform may contain content provided by persons or entities other than us or to which the Platform provides a link, and which content we may incorporate into the Content in whole or in part, or otherwise make available on or through the Platform and which we will identify on the Platform as being provided by third parties. To the maximum extent permitted by applicable law, you acknowledge that we have no control over, and accordingly take no responsibility and accept no liability for, any inaccuracy, incompleteness, insufficiency, unavailability or unreliability of any such Content received by us from such entities or Content which we may provide in whole or in part. We do not represent or endorse the accuracy or reliability of any such Content provided by such other persons or entities or provided by us. To the maximum extent permitted by applicable law, you acknowledge that any reliance upon any such content or services shall be at your sole risk.
11.4 We may publish Content on or through the Platform, and the presentation or publishing of this Content does not create any obligations, undertakings, warranties or guarantees of any kind on us. We are not obliged and disclaim any obligation to verify that any Content is accurate, or complete. Therefore, to the extent permitted by applicable law, we cannot be held liable for the quality or accuracy of the Content published on or through the Platform or any further Content created therefrom, to the maximum extent permitted by applicable law.
11.5 To the maximum extent permitted by applicable law, the Content on or accessed through the Platform is provided "as is", without any conditions, warranties or other terms of any kind, to the maximum extent permitted by applicable law. In particular, We make no representations, warranties or guarantees, whether express or implied as to merchantability, title, non-infringement, compatibility, security, accuracy, completeness, sufficiency, availability, adequacy, quality, reliability or fitness for any particular purpose of the Content available or created through, published or incorporated or made available, on or through the Platform, to the maximum extent permitted by applicable law.
11.6 Accordingly, to the maximum extent permitted by applicable law, we provide you with the Platform on the basis that we exclude all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by applicable law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which, but for this legal notice, might have effect in relation to the Platform and the Content.
12. Links to Other Platforms or the Platform
12.1 The Platform may from time to time offer links to other websites or resources from which third party services can be obtained. However, to the maximum extent permitted by applicable law, you acknowledge that these other websites and resources are independent from us and we make no representations or warranties as to the legitimacy, accuracy or quality of such third party services, and we do not accept any responsibility for their content, safety, practices or privacy policies. These links are provided for your information only. We have no control over the contents of third party sites (or any amendments thereto) or resources, and to the maximum extent permitted by applicable law, we cannot be held liable for any loss caused, or liability incurred by you, as a result of your use of such sites and resources, or any outdated, inaccurate or incomplete versions of the content contained on such sites. The appearance of links to third party sites does not constitute an endorsement, sponsorship, affiliation or recommendation of those sites by us.
12.2 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link to the Platform in any website or application that is not owned by you or to a website that you are not duly authorised to represent (save where expressly authorised under these Terms). The Platform must not be framed on any other website or application, nor may you create a link to any part of the Platform other than the home page (save where expressly authorised under these Terms).
12.3 The website in which you are linking must comply in all respects with the Content Standards.
12.4 We reserve the right to withdraw linking permission without notice.
13. Computer Viruses
13.1 We do not guarantee that the Platform will be secure or free from bugs, viruses or any other harmful or potentially harmful destructive code.
13.2 We will use reasonable endeavours to ensure that no part of the Platform will contain or spread any bugs, viruses or other malicious code. However, you are responsible to ensure that computers and other devices used to access the Platform run up-to-date anti-virus software as a precaution, and you are advised to virus-check any materials downloaded from the Platform and regularly check for the presence of viruses and other malicious code. You should use your own virus protection software. You are responsible for configuring your information technology, computer programmes and platform in order to access the Platform.
13.3 To the maximum extent permitted by applicable law, we will not be liable for any loss or damage caused by a virus or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Platform or to your downloading of any content from it, or from any website linked to it.
13.4 You must not misuse the Platform by knowingly or negligently introducing viruses, trojans, worms, logic bombs, time-bombs, keystroke loggers, spyware, adware or other material which is malicious or technologically harmful to the Platform, our server, or our service provider’s servers, computers or database connected to the Platform (“Our system”). You must not attempt to gain unauthorised access to the Platform or Our system. You must not attack the Platform or Our system via a denial-of-service attack, a distributed denial-of service attack or otherwise. Should you commit a breach of this provision we will report such breach to the relevant law enforcement authorities, and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Platform will cease immediately.
14. Limitation of Liability - PLEASE READ THIS SECTION CAREFUlLY
14.1 To the maximum extent permitted by applicable law, nothing in these Terms excludes or limits our liability for death or personal injury arising from our negligence, our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited under applicable law.
14.2 Without limitation to the generality of the foregoing, and to the maximum extent permitted by applicable law, it is a condition of accessing the Platform that you accept and agree we shall not be liable for any harmful effect that accessing the Platform may have on you, and you agree that you access and use the Platform entirely at your own risk. Without limitation to the generality of the foregoing, we, all other parties involved in creating, producing, maintaining or delivering the Platform or any Content, and all of our group companies and the officers, directors, employees, shareholders or agents of any of them, exclude all liability and responsibility for any amount or kind of loss or damage that may result to you or a third party (including without limitation, any direct, indirect, special, punitive or consequential loss or damages, or any loss of use, income, profits, goodwill, data, contracts, use of money, or loss or damages arising from or connected in any way to business interruption, and whether in delict, tort contract, breach of statutory duty or otherwise) in connection with the Platform or any Content in any way or in connection with the use, inability to use or the results of use of the Platform or any Content, any websites linked to the Platform or the material on such websites, including but not limited to loss or damage due to viruses that may infect your computer equipment, software, data or other property on account of your access to, use of, or browsing the Platform or any BlueAvo Content or your downloading of any material from the Platform or any websites linked to the Platform.
14.3 In particular, without limitation to the generality of the foregoing, and to the maximum extent permitted by applicable law, whether in contract, delict, tort (including, without limitation, negligence), breach of statutory duty, or otherwise:
14.3.1 we will not be liable to you for any loss or damage arising under or in connection with:
18.104.22.168 use of, or inability to use, the Platform or any linked website
22.214.171.124 use of or reliance on any content displayed on or produced via the Platform or any linked website;
126.96.36.199 business interruption;
188.8.131.52 corruption of content or data;
184.108.40.206 a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Platform or to your downloading of any content on or through it or on any website linked to it; or
220.127.116.11 the acts or omissions of any other user of the Platform, including (without limitation) infringement of Intellectual Property or disclosure of Confidential Information;
14.3.2 To the maximum extent permitted by applicable law, we will have no liability to you for any indirect or consequential loss or damage of any kind or for any loss of revenue, profit, sales, business, revenue, anticipated savings, business opportunity, contracts, data, reputation or goodwill (whether direct or indirect) arising out of or in connection with these Terms and/or the Platform; and
14.4 In any event and subject to
14.1, if notwithstanding the aforegoring and to the maximum extent permitted by applicable law, we have any liability to you in respect of any and all loss and/or damage arising out of or in connection with these Terms and/or the Platform, our total liability in respect thereof shall in no circumstances exceed the greater of: (1) in relation to an applicable Contract, the BlueAvo Fee received by us which is directly related to your use of the Platform giving rise to your claim; and (2) ZAR 1 000 (one thousand Rand).
14.5 Except as expressly set out in these Terms and to the maximum extent permitted by law, we make no representations, warranties or guarantees of any kind in respect of the Platform or any content available through the Platform and all conditions, warranties and representations express or implied are hereby excluded to the full extent permitted by law.
14.6 If you are a consumer under any applicable law and to the maximum extent permitted by applicable law (including without limitation the South African Consumer Protection Act, 2008), nothing in these Terms is intended to remove your rights under such laws, including to statutory guarantees or warranties that may apply to your use of the Platform. If we are entitled to limit the remedies available to you for breach of such guarantees or warranties, we expressly limit our liability as set out in this section to the maximum extent permitted by applicable law. If you are a consumer (as for the purposes of such laws) and any of the services supplied by us are not services of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability for a failure to comply with a guarantee or warranty under the such laws in relation to those services is limited to, at our option, to the extent permitted under applicable law: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again. In other jurisdictions, warranties, guarantees and conditions may apply that we cannot legally exclude. If that is true in your jurisdiction, then to the extent permitted by such laws, we limit our liability for any claims under those warranties, guarantees or conditions to either supplying you the services again or paying the cost of having the services supplied again.
15. Termination or Suspension
In addition to our other remedies under these Terms or applicable law, 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.
16.1 To the maximum extent permitted by applicable law, we may at any time assign, cede, delegate, mortgage, charge, subcontract, sublicense or otherwise transfer any or all of our rights and obligations under these Terms or any Contract without your prior written consent, to the greatest extent permitted under applicable law.
16.2 You may not assign, cede, delegate, mortgage, charge, subcontract, sublicense or otherwise transfer any of your rights or obligations under these Terms or any Contract without our prior written consent.
17.1 If any provision or part of a provision of these Terms is held to be illegal, invalid, unenforceable or against public policy pursuant to a final adjudication by a court of competent jurisdiction, such provision will be deemed severed from these Terms and the remainder of these Terms will remain in full force and effect.
17.2 These Terms, and the documents referred to in them, constitute the entire agreement between you and us in relation to the subject matter of these Terms and supersede and extinguish any prior agreement in respect of the same.
17.3 Subject to clause 17.4 below, you agree that these Terms (and where applicable, any Contract), the subject matter and formation, are governed by the laws of South Africa. You and we hereby both consent and submit to the exclusive jurisdiction of the High Court of South Africa, Cape Town, having exclusive jurisdiction over any disputes arising in respect of or in relation to these Terms and your use of the Platform.
17.4 Nothing in clause 17.3 above shall (or shall be construed so as to) limit our right to bring a suit, action or proceeding (“Proceeding”) against you in the courts of any country in which you have assets or in any other court of competent jurisdiction nor shall Proceedings we institute in any one or more jurisdictions preclude us from instituting Proceedings in any other jurisdiction (whether concurrently or not) if and to the extent permitted by applicable law.
17.5 If there are any provisions in these Terms which may qualify as a penalty in terms of the Conventional Penalties Act, 1962 (as amended) in relation to any act or omission by you, to the maximum extent permitted by applicable law, such provisions shall not be deemed to preclude us from recovering damages in lieu of the relevant penalty.
17.6 Interpretation In addition to the definitions in clause 1, for the purposes of These Terms, the following rules of interpretation shall apply, unless the context clearly requires otherwise:
17.6.1 a reference to:
18.104.22.168 any one gender, whether masculine, feminine or neuter, includes the other two;
22.214.171.124 a party includes its successors or permitted assigns;
126.96.36.199 any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day is a day that is not a business day, the next business day;
188.8.131.52 a person includes, without being limited to, any individual, body corporate, unincorporated association or other entity recognised under any law as having a separate legal existence or personality;
184.108.40.206 a statute or statutory provision include any subordinate legislation made from time to time under that statute or provision and references to a statute or statutory provision include that statute or provision as from time to time modified or re-enacted as far as such modification or re-enactment applies, or is capable of applying, to these Terms or any transaction entered into in accordance with these Terms;
17.6.2 any word or expression defined in, and for the purposes of, these Terms shall, if expressed in the singular, include the plural and vice versa, and a cognate word or expression shall have a corresponding meaning;
17.6.3 if a definition confers substantive rights or imposes substantive obligations on a party, such rights and obligations shall be given effect to and are enforceable as substantive provisions of these Terms, notwithstanding that they are contained in that definition;
17.6.4 no rule of construction shall be applied to the disadvantage of a party to these Terms because that party was responsible for or participated in the preparation of these Terms or any part of them;
17.6.5 all the headings and sub-headings in these Terms are for convenience only and are not to be taken into account for the purposes of interpreting them;
17.7 where the words include(s), including or in particular followed by specific examples shall be construed by way of example or emphasis only and shall not be construed, nor shall it take effect, as limiting the generality of any preceding words, and the eiusdem generis rule is not to be applied in the interpretation of such specific examples or general words and where the context permits, the words other andotherwise are illustrative and shall not be construed eiusdem generis with or limit the sense of the words preceding them where a wider construction is possible; and
17.8 a term defined in a particular clause, unless it is clear from the clause in question that application of the term is to be limited to the relevant clause, bears the meaning ascribed to it for all purposes of these Terms, notwithstanding that that term has not been defined in clause 1 and, where there is any inconsistency between any term defined in clause 1 and any term defined in any other clause in these Terms, then, for the purposes of construing such clause, the term as defined in such clause prevails.
THE CLAUSES BELOW APPLY SPECIFICALLY TO POSTING BRIEFS AND RESPONSES AND TO CONTRACTS
18. Posting Briefs and Exclusivity
18.1 By creating and posting a Brief, a Client warrants to BlueAvo that, to the maximum extent permitted by applicable law:
18.1.1 it intends in good faith to select a Response;
18.1.2 the Brief describes its requirements as accurately as possible and in sufficient detail for the Creator to determine whether the Creator Payment will be adequate remuneration;
18.1.3 it has the authority and funds to pay the Budget and any Taxes; and
18.1.4 where it posts materials as part of a Brief that would ordinarily be classified as a Client's Intellectual Property, trade secrets/know how, product specifications or anything else a Client would seek to classify as its Confidential Information, the Client has reviewed all such materials and acknowledges that posting the materials to a Brief may make them publicly available to Creators.
18.2 If a Client posts a Brief using the Platform the Client agrees that up to and including the Response Deadline that:
18.2.1 the Brief shall be exclusive to the Platform and the Client will only solicit responses to the Brief via the Platform.
18.2.2 without limiting the clause 18.2.1 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;
18.2.3 any promotion referred to in clause 18.2.2 above will include a link to the Platform as the exclusive point of contact for responses to the Brief.
18.3 If a Client does not accept any Responses received to a Brief even though the Responses satisfied the selection criteria, then the Client shall nonetheless pay the BlueAvo Fee to BlueAvo.
18.4 In preparing and posting any Brief, the Client acknowledges that it has read and understood these Terms, and in particular, that it is aware of and understands clauses 23.18, 27.2 and 27.5. Please contact us at email@example.com should you require additional clarity regarding such provisions.
19. Responding to Briefs
19.1 Some Briefs may be limited in their availability to certain Creators only (e.g. based on location, quality, or due to confidentiality).
19.2 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 Central African Time (CAT) unless otherwise stated. It is the Creator's responsibility to convert the time and date to its local time zone.
19.3 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.
19.4 Creator must not disclose its Response to any third party unless such third party is directly involved in the Creator's production.
19.5 Creator must not include any materials in a Response which incorporate work from any previously commissioned BlueAvo Briefs that are yet to be form part of the public domain or which Creator does not otherwise have the necessary licence, rights, consents, approvals and permissions to use.
19.6 Creator must keep all Briefs confidential and shall not use or disclose any Brief for any purpose other than to provide a Response, and to disclose the Brief to Creator’s personnel and contractors involved in the Response (on a need-to-know and confidential basis only). For certain Briefs, the Client may require each Creator that wishes to view the Brief to enter into a non-disclosure and confidentiality agreement or other form of agreement protecting the Confidential Information and Intellectual Property of the Client directly with the Client through the Platform. The Creator acknowledges that if it chooses to enter into any such non-disclosure agreement, the relevant Client will be able to enforce the provisions thereof against the Creator directly.
20. Selection of Briefs and Contracting
20.1 Except as set out in the Brief, BlueAvo will notify a Creator via the Platform within 30 days of the Response Deadline if that Creator's Response was successful or not. If any Creator has not received a response within 30 days of the Response Deadline, the Creator may request in writing that its Response be removed from consideration.
20.2 If we or the Client are unable to communicate with the Creator (e.g. to select or commission them) within 24 hours of such notification, the Client may withdraw its selection of the Creator's Response and commission another Creator without liability of us or the Client to the Creator.
20.3 To the maximum extent permitted by applicable law, neither we nor the Client will have any liability to a Creator in respect of a failure for any reason to select any Response.
20.4 By notifying a Creator that Client has selected the Creator's Response, a Client accepts the Creator’s offer to contract referred to in clause 19.3 above with the effect that a binding contract arises between the Creator, the Client and us (to the extent applicable) on the terms and conditions set out in the Brief, the Response and these Terms (including without limitation clauses 18 to 32 (both inclusive).
20.5 Clients must keep all Responses confidential and shall not use or disclose any Responses for any purpose other than to select a Response, or to disclose the Responses to parties associated with the Brief and the Client's professional advisors and related entities, agents and personnel and professional representatives (on a need-to-know and confidential basis only). For certain Responses, the Creator may require the Client to enter into a non-disclosure agreement or other form of agreement protecting the Confidential Information and Intellectual Property of the Creator directly with the Creator through the Platform.The Client acknowledges that if it chooses to enter into any such non-disclosure agreement, the relevant Creator will be able to enforce the provisions thereof against the Client directly.
20.6 Once a Response has been accepted, Client and Creator consent to us providing each of Client and Creator's contact details to each other.
20.7 Notwithstanding clause 20.6 above, Client and Creator must ensure that all ongoing communication related to any Brief, Response or Production is completed through BlueAvo via the messaging and other production management tools provided, so that we have a record of this communication for Client and Creator's protection.
20.8 To the maximum extent permitted by applicable law, the Client warrants that:
20.8.1 Client has all necessary rights, licences, permissions and consents to grant the Licence;
20.8.2 the Client Assets and the Licence, and our exercise of the Licence, shall not infringe the rights, including (without limitation) the Intellectual Property rights, of any third party; and
20.8.3 the Client Assets shall not include anything which is or may reasonably be regarded as offensive, blasphemous, obscene, defamatory or otherwise unlawful.
21. Contract Formation
21.1 Upon the notification by a Client that it has selected a Response in accordance with the Terms, the Client and Creator and us (to the extent applicable) will automatically enter into a contract on the terms of the Brief, the Response and these Terms (including without limitation clauses 18 to 32 (both inclusive)) (Contract).
21.2 If you do not wish to enter into a binding legal agreement, you must not post a Brief or a Response.
21.3 We are not the service provider or the customer in relation to the Production and, to the maximum extent permitted by applicable law, our responsibility and liability under the Contract is limited to facilitating the transaction, including certain payments. The Client hereby appoints us to facilitate the transaction, including certain payments in consideration for which the Client will pay us the BlueAvo Fee.
21.4 Unless the contrary intention is expressed, if there is any conflict or inconsistency between any of one or more of:
21.4.1 any provision of the Brief identified as an Additional Term (provided such term is located under the designated heading of “Additional Terms”), except for any provision that impacts any right or obligation of BlueAvo and BlueAvo’s prior written consent was not obtained;
21.4.2 the remaining provisions of the Contract;
21.4.3 the remaining provisions of the Brief;
21.4.4 the Response, then to the extent of such conflict or inconsistence, the order of precedence among them will be the order listed above. However, any provision of the Response expressly stated in the Response to amend any provision of the Brief located under the designated heading of “Additional Terms” in the Brief will have the highest level of precedence except where such provision of the Response impacts any right or obligation of BlueAvo and BlueAvo’s prior written consent was not obtained.
21.5 The Contract will endure for the period specified in the Brief, or if no period is specified, then until all obligations in respect of delivery and acceptance of the Production and payment of all costs, fees and expenses have been complied with.
21.6 Notwithstanding the formation of the Contract, each Client and Creator will nonetheless be separately bound by these Terms (except to the extent this would result in duplication of any obligations e.g. payment obligations).
21.7 Please note that you may be entitled to a cooling off period under applicable law in which case you may terminate the Contract in this period.
22.1 Subject to confirmation by us that we have received the Budget in accordance with clause 23, the Creator must produce and deliver the Production in accordance with the Contract (including, the budget and production schedule).
22.2 Without limiting clause 6.1 above, the Creator agrees to provide each Production with reasonable skill, care and diligence and in accordance with:
22.2.1 good industry practice;
22.2.2 all applicable laws;
22.2.3 the relevant Brief;
22.2.4 the Creator's Response;
22.2.5 these Terms; and
22.2.6 the Client's reasonable instructions and specifications.
22.3 The Creator must provide all facilities, assets, personnel and other resources necessary to provide each Production unless otherwise agreed with the Client.
22.4 The Creator agrees to provide, at no additional cost to the Client, 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.
22.5 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.
22.6 The Creator understands and acknowledges that where a production involves domestic or international travel, that this must be factored into the Creator Payment (for both crew and equipment) and that the Creator is responsible for obtaining any required visas and local filming permits.
23. Fees, Payment and Acceptance.
23.1 In consideration for the provision of the Production, the Client shall pay the Creator Fees, any Overages and any other applicable costs and expenses payable to the Creator.
23.2 The Creator Fees are inclusive of all costs of production work to produce the Production, including any film production, artwork, design, photography, graphics, recording, editing and printing; all materials used by or on behalf of the Creator to produce the Production and/or provide the services; and all overheads or administration costs of the Creator, including all costs of telephone calls, printing and stationery, delivery charges and postage costs, except to the extent stated otherwise in the Brief, the Response or agreed otherwise between the Client and the Creator in writing.
23.3 In consideration for facilitating the transaction between the Client and the Creator, the Client will pay to us the BlueAvo Fees.
23.4 Overages that are an increase in the original scope of the Brief, (e.g. additional deliverables, additional edits), will attract BlueAvo Fees at the same rate and service level as the original Brief and Creator Payment. Overages which are not an increase in original scope of the Brief (e.g. incidentals, usage extensions) will attract BlueAvo Fees at 10% for processing and payment.
23.5 Client must pay the Budget, any Overages and any other amounts payable by Client directly to us in accordance with the Contract.
23.6 Client must pay to us:
23.6.1 the Budget by the due date as specified via the Platform. BlueAvo 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;
23.6.2 any Overages and the applicable additional BlueAvo Fee, on agreement of such Overages between the Client and the Creator; and
23.6.3 any costs and expenses set out in the Brief in accordance with the Brief (including, without limitation, costs of hard drive and courier in relation to rushes where specified in the Brief), using the payment method and currency stipulated via the Platform or applicable invoice (which may be updated from time to time).
23.7 Client and Creator acknowledge that we will retain the BlueAvo Fee and following instruction from Client (via the Platform) will release the applicable Creator Payment (which comprises the Budget less the BlueAvo Fee) to the relevant Creator:
23.7.1 on final acceptance of the Production (or where acceptance is deemed to have occurred - see clause 23.10 below); or
23.7.2 if the Client is eligible, via progress payments, in accordance with the Brief and the prescribed payment schedule using the Platform, in each case provided such amounts have been received by us in our bank account in full and clear funds.
23.8 In relation to payments referred to in clause 23.7.2 above, and to the maximum extent permitted by applicable law, 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/or on final acceptance (as applicable) by marking the Brief as complete on the Platform (or where acceptance is deemed to have occurred - see clause 23.10 below). Any costs incurred by the Creator prior to release of payments are solely at the Creator's own risk.
23.9 In relation to any Overages and other costs and expenses that the Client has agreed to pay to the Creator, Client and Creator acknowledge that we will retain the BlueAvo Fee (in relation to the Overages) and following instruction from Client (via the Platform) will release the applicable amounts to the relevant Creator, provided such amounts have been received by us in our bank account in full and clear funds.
23.10 To the extent permitted under applicable law, Client warrants that it will acknowledge final acceptance of the Production (acting reasonably and in good faith) by marking the relevant Brief as complete via the Platform. If the Client fails to do so, Client agrees that final acceptance shall have been deemed to occur: (i) if Client does not reject the Production within 21 days of receipt of the final online edit of Production; or (ii) on any use by Client of the Production (other than considering whether the Production meets the relevant acceptance criteria). 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. If the Client rejects the Production, it shall do so in writing (via the Platform) within the time period specified above, and give sufficiently detailed reasons for the rejection. Unless otherwise required under applicable law, the Creator shall make all necessary changes to the Production to render same acceptable, in consultation with the Client, and shall submit to the Client the revised Production by the end of such period. The provisions of this clause 23.10 will apply mutatis mutandis until such time as the Production is accepted or deemed accepted, unless otherwise required by applicable law.
23.11 To the maximum extent permitted by applicable law, 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 a Production.
23.12 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.
23.13 Client agrees to make all payments under the Contract without set-off, withholding or deduction of any amounts including in respect of any Taxes. 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).
23.14 To the maximum extent permitted by applicable law, Client and Creator acknowledge that:
23.14.1 the payments under the Contract of all amounts payable to BlueAvo are exclusive of Taxes which, if applicable, shall be payable by Client;
23.14.2 the payments under the Contract of all amounts payable to the Creator are exclusive of Taxes which, if applicable, shall be payable by Client, unless otherwise stated in a Brief;
23.14.3 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);
23.14.4 we have no responsibility to Creator whatsoever in relation to the impact of exchange rate variations, applicable Taxes or payment gateway fees and charges, on the amounts that the Creator is owed under the Contract.
23.15 Notwithstanding clause 23.13, in the event a Client determines that it is required by law 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.
23.16 To the maximum extent permitted by applicable law, 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 Client in respect of the same. Should Client wish to pursue any claim for a refund, Client must institute a claim against Creator directly. To the maximum extent permitted by applicable law, 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 acceptance.
23.17 To the maximum extent permitted by applicable law, 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.
23.18 The Client and the Creator acknowledge that certain jurisdictions (e.g. South Africa) impose restrictions on offshore payments from those jurisdictions, and that, under applicable law, certain approvals, permits or consents must be obtained from the relevant authorities before any payment can be made (e.g. where the Client, the Creator and/or BlueAvo are located in different countries). Accordingly, such requirements may delay the ability of BlueAvo, the Client and/or the Creator to make any payments under the Contract. To the extent permitted under applicable law, the Client and the Creator are responsible for obtaining such approvals, permits or consents and BlueAvo will not be liable for a failure to obtain same.
24. Breach of the Contract
24.1 If the Creator commits a material breach of any term of the Contract that cannot be remedied or, if capable of remedy, has not been remedied within 7 (seven) days of written notice from Client requiring such remedy, Client may cancel the Contract with immediate effect on provision of written notice to the Creator and us. To the maximum extent permitted by applicable law, such termination will not affect the Client’s obligation to pay the BlueAvo Fee.
24.2 If the Client commits a material breach of any term of the Contract that cannot be remedied or, if capable of remedy, has not been remedied within 7 (seven) days of written notice from Creator requiring such remedy, Creator may cancel the Contract with immediate effect on provision of written notice to the Client and us. To the maximum extent permitted by applicable law, such termination will not affect the Client’s obligation to pay the BlueAvo Fee.
24.3 If the Creator or the Client commits a material breach of any term of the Contract that impacts BlueAvo and that cannot be remedied or, if capable of remedy, has not been remedied within 7 (seven) days of written notice from BlueAvo requiring such remedy, BlueAvo may cancel the Contract with immediate effect on provision of written notice to the Creator and the Client. To the maximum extent permitted by applicable law, such termination will not affect the Client’s obligation to pay the BlueAvo Fee.
25. Fees Payable By Client In Relation To Cancelling Briefs
25.1 Client may terminate a Brief (and accordingly, if applicable, the Contract) for convenience at any time on written notice to the Creator and BlueAvo provided that it pays the cancellation fees set out below.
25.2 If Client cancels a Brief 72 hours or more before the Response Deadline, Client will not incur cancellation fees.
25.3To the maximum extent permitted by applicable law, if Client cancels a Brief less than 72 hours before the Response Deadline or after the Response Deadline, but before selection of a successful Response, Client will be liable for 50% of the BlueAvo Fee. We may, in our absolute discretion, agree to waive some or all of the BlueAvo Fee if we determine that the Responses received were not satisfactory to Client's Brief.
25.4 To the maximum extent permitted by applicable law, if Client cancels a Brief (and accordingly, if applicable, the Contract) more than 7 days prior to the first scheduled production day for the Production, Client will be liable for 100% of the BlueAvo Fee, and:
25.4.1 Client must pay the greater of 100% of the Creator's actual expenses incurred prior to cancellation and 15% of the Creator Payment.
25.5 To the maximum extent permitted by applicable law, If Client cancels a Brief (and accordingly, if applicable, the Contract) 7 days or less prior to the first scheduled production day for the Production, Client will be liable for 100% of the BlueAvo Fee, and:
25.5.1 Client must pay the greater of 100% of the Creator's actual expenses incurred prior to cancellation and 30% of the Creator Payment.
25.6 To the maximum extent permitted by applicable law, if Client cancels a Brief (and accordingly, if applicable, the Contract) after the first scheduled production day for the Production, Client will be liable for 100% of the BlueAvo Fee, and:
25.6.1 Client must pay the greater of 100% of the Creator's actual expenses incurred prior to cancellation and 60% of the Creator Payment.
25.7 Creator's actual expenses referred to in the above clauses, must be evidenced by receipts provided by the Creator.
25.8 If the amount of the Creator Payment released to the Creator as at the date of cancellation is more than the amount referred to in any of the scenarios outlined at clauses 25.4 to 25.6 (inclusive), the Creator will refund to Client an amount equal to the Creator Payment released to the Creator less the relevant amount referred to at clauses 25.4 to 25.6 (inclusive). The Creator will pay this amount to us and we will release this amount to the Client once received by us in our bank account in full and clear funds.
25.9 If the amount of the Creator Payment released to the Creator as at the date of cancellation is less than the amount referred to at clauses 25.4 to 25.6 (inclusive) (as the case may be for each scenario), Client must pay to the Creator such amounts as is necessary to give effect to this clause 25.The Client will pay this amount to us within 7 days of cancellation and we will release this amount to the Creator once received by us in our bank account in full and clear funds.
26. Client Assets
26.1 If Client uploads Client Assets to the Platform, or otherwise provides Client Assets to us or any Creator, Client grants:
26.1.1 us, a non-exclusive, revocable, royalty-free, worldwide licence to reproduce, host and store the Client Assets and to make them available to Creators strictly for the purposes of the operation of the Platform, Posting of Briefs and performance of the Contract in accordance with these Terms; and
26.1.2 each Creator a non-exclusive, revocable, non-transferable, royalty-free, worldwide licence to use, reproduce, adapt, edit and modify the Client Assets as reasonably required (or directed by the Client) to both produce and submit Responses and perform the Contract, (the “Licence”).
26.2 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.
26.3 Upon final acceptance 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.
26.4 Notwithstanding anything in clause 26.3, for 3 years from the date of final acceptance 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 BlueAvo or a Client, the Creator must (without claiming any additional fees) provide a downloadable link to all master files, super-less master files and separate audio splits. 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.
26.5 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.
26.6 Client warrants that:
26.6.1 Client has all necessary rights, licences, permissions and consents to grant the Licence;
26.6.2 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
26.6.3 the Client Assets shall not include anything which is or may reasonably be regarded as offensive, blasphemous, obscene, defamatory or otherwise unlawful.
27. Intellectual Property Under The Contract
27.1 In respect of the relevant Production, and in consideration of the payment of the Creator Payment in full, but subject at all times to applicable law and clause 27.2 (where applicable):
27.1.1 each party shall retain all right, title and interest in any Intellectual Property that it owned prior to the Contract;
27.1.2 the Client shall own all Assigned Materials, including the Production and deliverables, as well as any and all Intellectual Property forming part of such deliverables created or produced by the Creator under the Contract, (except any pre-existing Intellectual Property rights of the Creator) following receipt by the Creator of payment in full for each Deliverable and the Creator acknowledges that it shall not obtain any right, title or interest in or to such Intellectual Property rights;
27.1.3 the Client shall own all Third-Party Materials comprised in the Production, where an assignment of such materials is available on commercially reasonable terms which have been approved by the Client in accordance with clause 27.8; and
27.1.4 where no assignment of Third-Party Materials is available at all or on commercially reasonable terms, the Creator shall procure a licence of such materials on appropriate terms.
27.2 The Client understands and acknowledges that certain jurisdictions (e.g. South Africa) impose restrictions on the offshore transfer and/or licensing of Intellectual Property from those jurisdictions, and that, under applicable law, certain approvals, permits or consents must be obtained from the relevant authorities before the Intellectual Property can be transferred or licensed to the Client (e.g. where the Client and the Creator are located in different countries). It is the Client and the Creator’s responsibility to obtain such approvals, permits or consents and, to the extent permitted under applicable law, BlueAvo will not be liable for a failure to obtain same.
27.3 Accordingly, following payment in full for the Production, subject to clause 27.2 and to the extent permitted under applicable law, the Creator hereby irrevocably cedes, assigns, transfers and makes over absolutely to the Client, automatically without the need for the Creator or the Client to take any further steps to effect such assignment, any and all rights in and to any existing and future Intellectual Property rights created or arising from the Assigned Materials and in and to any and all claims and potential claims (including any accrued rights and claims) in relation thereto (the “Assigned Rights”) for the full duration of such rights, wherever in the world enforceable. In this regard, for the avoidance of doubt, the aforementioned assignment includes cession, assignment, transfer and making over of all of the following in relation to each of the Assigned Materials and Assigned Rights: the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of the Assigned Materials or Assigned Rights.
27.4 The Client hereby accepts the rights assigned, ceded, transferred or made over to it in this clause 27.
27.5 The Client and the Creator acknowledge that if the above assignment is not permitted under applicable law, and/or does not comply with all formalities prescribed under applicable law, the Client and the Creator may need to enter into a separate assignment agreement (signed in wet ink) to give effect to the assignment, and the Creator undertakes to do so.
27.6 The Creator shall, at the Client’s cost, do and execute, and procure the doing and executing of, each necessary agreement, act, document and thing that may reasonably be necessary to perfect the right, title and interest of the Client in and to the Assigned Materials and the Assigned Rights; including but not limited to entering into a separate assignment agreement (if required), procuring such an assignment from any employee and any party who is not an employee of the Creator and who engages in producing or providing the Production or otherwise in any way authoring, creating, modifying or further developing any of the Assigned Materials or any Assigned Rights for or on behalf of the Creator (“Third Party Creators”).
27.7 The Creator shall, at the Client’s request and cost, do all things reasonably necessary to protect the Client’s rights in registering or otherwise protecting any Intellectual Property created for, owned by, ceded and/or assigned to the Client by the Creator.
27.8 The Creator shall ensure and/or procure that its written contracts with its sub-contractors (if any) include:
27.8.1 a warranty that all Intellectual Property created by the sub-contractor is original and does not infringe the Intellectual Property rights of any third party;
27.8.2 the necessary confidentiality provisions are adhered to, and procure the signature of the necessary non-disclosure and confidentiality undertakings from the sub-contractor(a) and/or any of its personnel who need to be given access to the Client’s confidential information; and
27.8.3 a cession and assignment to the Client of all individual rights, title and interest in and to any and all Intellectual Property created by the sub-contractor as part of its sub-contracting services, for no additional consideration.
27.9 The Creator indemnifies the Client against any losses, damages, costs, claims or penalties caused by its failure to procure the warranty and cession and assignment referred to in clause 27.7 above and shall, at its own cost, procure the assignment, cession or assignment upon the request of the Client.
27.10 To the extent permitted by applicable law, the Creator hereby, and the Creator shall procure that any Third Party Creators, unconditionally and irrevocably waives, in favour of the Client or its successor in title, all moral rights in and to the Assigned Materials and the Assigned Rights, to which the Creator and/or such Third Party Creators may be entitled under applicable law. In this regard, the Creator hereby, and shall procure that any Third Party Creators, unconditionally and irrevocably: (i) agrees not to enforce any of his or her moral rights in and to the Assigned Materials; (ii) agrees not to claim authorship or ownership of the Assigned Materials or any Assigned Rights; and (iii) consents to and agrees not to object to any acts and omissions of the Client or its nominee in relation to the Assigned Materials, including any distortion, mutilation or other modification thereof.
27.11 The Creator shall not incorporate and/or use Third-Party Materials in any deliverable unless the Creator has obtained the prior written consent of the Client to do so. The Creator shall give the Client reasonable prior notice of its intention to include any such Third-Party Materials and at the same time shall notify the Client in writing (via the Platform):
27.11.1 whether an assignment to the Client of the relevant Third-Party Materials can be obtained and the cost of obtaining it; and
27.11.2 if no assignment of the relevant Third-Party Materials can be obtained or cannot be obtained for a reasonable cost, the cost of obtaining a licence of such materials on appropriate terms. The Creator shall not propose the inclusion of any Third-Party Materials in any deliverable unless the Creator is able to negotiate a licence of such materials on appropriate terms.
27.12 Following receipt of the Creator’s notice under clause 27.7, the Client shall notify the Creator in writing (via the Platform) of whether inclusion of the relevant Third-Party Material is approved, and whether the Creator is required to obtain an assignment (if available) or a licence, and if so, the extent of such licence required and the approved cost thereof. The Client may also require the Creator to negotiate prices at which the licence obtained may, at the Client’s option, be extended.
27.13 The Creator shall ensure that all licences of Third-Party Materials are granted directly to the Client.
27.14 The Client shall comply with all third party licence restrictions.
27.15 The Creator warrants and undertakes that:
27.15.1 Creator has the sole right and authority to assign the rights to the Client expressed to be assigned above and, as applicable, to license any rights to be licensed to the Client; and
27.15.2 the Production is wholly original to Creator (or its licensors) and does not infringe the Intellectual Property or any other rights of any third party.
27.16 Notwithstanding the above, the Creator will not be responsible for, unless agreed in writing between Client and the Creator, public performance rights in respect of the Production (including without limitation in relation to musical compositions).
27.17 The Creator will not directly or indirectly, adapt, vary, modify, reproduce, translate or create any derivative work from the Assigned Materials and/or any Intellectual Property of the Client.
27.18 Client and Creator hereby grant us a non-exclusive, royalty-free, worldwide, perpetual licence to reproduce, host and store all Productions submitted by Creator under the Contract and to make them available to the relevant Client. We undertake to maintain accurate and up to date records of all materials retained by us by way of this licence.
27.19 Unless otherwise stated in a Brief, if Client rejects a Production there will be no assignment or grant of rights by the Creator to Client in relation to that Production and, except as otherwise agreed by Client and the Creator, Client must not exploit the Production in any manner.
27.20 The Creator shall procure from all artists, photographers, actors, models, performers of music, owners of any other Intellectual Property or other rights in materials incorporated into any deliverable and all other third parties used by the Creator in connection with deliverables, all necessary consents (including without limitation under the Performers’ Protection Act 1967), releases, and approvals to use their performance, work or images. 27.21 Without limiting this clause 27, the Creator undertakes that all personnel involved in, and all contributors to (including talent and music), any Production will sign release forms and other written agreements (together “Production Contracts”) if required which will amongst others:
27.21.1 include all relevant assignments or licenses (as applicable) to enable the Client, its successors, assignees and licensees to exploit the Production (or any part of it) in all media, globally and in perpetuity, subject to the usage limitations specified in the Brief which only apply to such personnel and relevant third party contributors (e.g. music composers) 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), subject at all times to applicable law;
27.21.2 contain express waivers of moral rights in connection with the Production; and
27.21.3 be free of any third party limitations or residual fees unless otherwise agreed in writing with the Client in accordance with the Contract.
27.22 The Creator must enter into all relevant Production Contracts in relation to the Production.
27.23 We provide digital release form templates to assist in the process of concluding Production Contracts. However, Creator and Client acknowledge that either of our digital release forms or a release form provided by the Client may be used. We are not responsible or liable for any failure of any Creator to enter into any Production Agreement or obtain any release from any third party and are not responsible or liable for a failure to obtain any rights or waivers required for the Creator to provide the Production or for the Client to fully exploit the Production. Accordingly, the Client is solely responsible for:
27.23.1 ensuring that the Creator has obtained all necessary Production Contracts and/or release forms;
27.23.2 ascertaining that the rights and waivers obtained pursuant to these documents are sufficient for Client's proposed exploitation of the Production; and
27.23.3 requesting any necessary copies and/or other evidence from the Creator for these purposes.
27.24 Without limiting the foregoing, 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.
27.25 Creator must provide copies of the Production Contracts to us and/or the relevant Client upon request, including completing any workflow (e.g. digital release forms) that is required of the Creator via the Platform.
27.26 Creator will maintain in force, with a reputable insurance company, errors and omission insurance, professional indemnity insurance (which will include cover pertaining to a Creator breach of any third party Intellectual Property and Client Confidential Information) and public liability insurance to cover the liabilities that may arise under or in connection with any Contract 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. 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.
27.27 Creator warrants that neither it nor any contributor to any Production is subject to the requirements or obligations of any union, guild, collecting society or similar association (“Union”) or, if Creator or any such party is subject to any Union, Creator warrants and agrees to fully comply with (and procure the contributor’s full compliance 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.
27.28 Creator agrees and consents:
27.28.1 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
27.28.2 that we and/or the Client shall have the right to use Creator or Creator's key personnel's name, likeness, image rights and biography to promote the Platform and/or any Production produced by the Creator. The Creator warrants that it has obtained all relevant consents from its key personnel.
27.29 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 the Client’s written consent for the depiction or reference and to the manner in which it is made.
28. Client Usage Rights And Additional Clearance Fees
28.1 Client's exploitation of a Production, including via Digital Media, Broadcast Media or Print Media, may be subject to usage restrictions and/or payment of additional clearance fees or other payments to third parties (including talent, voice-over artists and music rights holders). Client is solely responsible for ensuring that it has obtained all rights and waivers necessary to so exploit the Production.
28.2 For clarity, with respect to this clause 28, any usage restrictions (which may require additional clearance fees or payments) 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 Creators, unless otherwise required under applicable law.
29. Dealings Between Us, The Client And The Creator
29.1 Each of Creator and Client:
29.1.1 agree to act reasonably and in good faith in their respective dealings with us and each other and to respond promptly to all communications.
29.1.2 acknowledge that we are not responsible for any element of the Production or liable for the acts or non-performance by Client or Creator.
29.2 Client and Creator shall not circumvent or attempt to circumvent the Platform or send or receive consideration for any Brief, Contract or related work other than via the Platform. Without prejudice to any other of our rights or remedies under these Terms, we reserve the right to charge the Client the BlueAvo Fee in such circumstances.
29.3 Client shall indemnify us 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 these Terms or the Contract by Client or actual or alleged infringement of a third party’s Intellectual Property rights arising out of, or in connection with any Content posted by the Client on the Platform, including (without limitation) any Brief or Client Asset or act or omission of Client that causes us to breach any applicable laws.
29.4 Creator shall indemnify us 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 these Terms or the Contract or actual or alleged infringement of a third party’s Intellectual Property rights arising out of, or in connection with any Content posted by the Creator on the Platform, including (without limitation) any Response or Production or act or omission of Creator that causes us to breach any applicable laws.
29.5 Creator shall indemnify the Client against all liabilities, costs, expenses, damages and losses suffered or incurred by the Client arising out of or in connection with any claim that the Production or the Client's exploitation of the Production (in accordance with the Contract) infringes the Intellectual Property or other rights of any person or entity.
29.6 Neither Creator nor Client, while registered on the Platform and for a period of 3 months after ceasing to be registered, shall:
29.6.1 in the case of the Client, knowingly seek or accept the services of any Creator independently from the Platform; or
29.6.2 in the case of the Creator, knowingly seek or accept any Client independently from the Platform; or
29.6.3 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.
30. Responsible Contracting
30.1 Client and Creator must comply with all applicable laws, including without limitation, anti-bribery laws and regulations.
30.2 Client and Creator and any person or entity working on Client or Creator's behalf, in connection with the Contract, shall not make any payment or transfer anything of value, directly or indirectly to any of the following if such payment or transfer would violate the laws of the country in which the transaction is made:
30.2.1 any governmental official or employee (including employees of government-owned and government-controlled corporations and public international organizations);
30.2.2 any political party, official of a political party, or candidate for public office;
30.2.3 any intermediary, including, but not limited to, agents or family members of government officials, for payment to any government official;
30.2.4 any other person or entity in a corrupt or improper effort to obtain or retain business or any advantage, in connection with Client or Creator's affairs;
30.2.5 any business entity selling a competing product in order to eliminate or restrict competition, including, but not limited to, agreements to divide the market; or
30.2.6 any other person or entity.
30.3 Client and Creator each warrant and represent that, should it learn of or have reason to suspect any breach of the obligations in clauses 30.1 or 30.2 above, it will take appropriate remedial steps and promptly notify the other party and us.
30.4 Without limiting any other provision of the Contract, Client and Creator each represent and warrant that:
30.4.1 except as disclosed in writing, neither Client nor Creator has any conflict of interest with respect to its business dealings in accordance with the Contract;
30.4.2 their performance of their respective obligations under the Contract will not breach any applicable law (including, without limitation, any laws relating to export controls, sanctions, data protection, anti-trust prohibitions and minimum employment standards);
30.4.3 they will not engage in any activity that involves the exploitation of child labour or labour generally and will implement and comply with policies to protect the rights of workers in compliance with applicable laws (including, without limitation, ensuring that wages are paid to all applicable workers that meet or exceed legal minimum standards or applicable industry standards (whichever is higher) and workers are not required to work for more hours than applicable under the relevant legal standards and all overtime is voluntary);
30.4.4 they recognise and respect any legal rights of workers to freedom of association and collective bargaining.
30.5 Creator must disclose to Client any ownership of or beneficial interest in Creator by:
30.5.1 any governmental official or employee (including employees of government-owned and government-controlled corporations and public international organizations);
30.5.2 any political party, official of a political party, or candidate for public office;
30.5.3 any intermediary, including, but not limited to, agents or family members of government officials, for payment to any government official; or
30.5.4 any employees of Client or family members of employees of Client.
31. Limitation Of Liability Under The Contract
31.1 The restrictions on liability in this clause 31 apply to every liability arising under or in connection with the Contract including (without limitation) liability in contract, delict, tort. misrepresentation, breach of statutory duty or otherwise.
31.2 Nothing in the Contract shall limit or exclude a party’s liability: (i) for death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors; (ii) for fraud, fraudulent misrepresentation or wilful misconduct; or (iii) for any other liability which cannot be limited or excluded by Applicable Law.
31.3 No party to the Contract shall have any liability to any other parties for any indirect or consequential loss arising under or in connection with the Contract.
31.4 Our liability is limited as set out in these Terms, including without limitation clause 14.
32. General Provisions Under The Contract
32.1 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, joint venture or agency relationship and no party will make any representation as such.
32.2 The Contract contains the entire agreement between the Client, the Creator and use and supersedes any prior written or oral agreement between them in relation to the matters dealt with in the Contract.Save as expressly provided for in the Contract or as required by law, no party shall have any claim or right arising from any undertaking, representation or warranty not included in the Contract.
32.3 Save as otherwise expressly provided in these Terms, no agreement to amend, add to or otherwise vary or waive any of the provisions of the Contract (including this clause 32.3) or to cancel or terminate it shall be effective unless made in writing and duly signed by the Client, the Creator and use.
32.4 If any provision or part of a provision of these Terms is held to be illegal, invalid, unenforceable or against public policy pursuant to a final adjudication by a court of competent jurisdiction, such provision will be deemed severed from these Terms and the remainder of these Terms will remain in full force and effect.
32.5 Save as otherwise expressly provided in the Contract, neither the Client nor the Creator may assign, cede, delegate or otherwise transfer or deal with the Contract or any of its rights and obligations under it without the prior written consent of us and the other party (the Client or the Creator as applicable). We may at any time assign, cede, delegate or otherwise transfer or deal any of our rights or obligations under the Contract.
32.6 Any failure by us, the Client or the Creator to exercise or delay by us, the Client or the Creator in exercising its rights or remedies provided under the Contract or by law does not constitute a waiver of that or any other right or remedy and does not prevent, limit or restrict the future exercise or enforceability of that or any other rights or remedies. No single or partial exercise of any right or remedy provided under the Contract or by law prevents or restricts the further exercise of that or any other right or remedy.
32.7 No remedy conferred by the Contract is intended to be exclusive of any other remedy that is otherwise available under any law. Each remedy shall be cumulative and in addition to every other remedy given under the Contract or under any existing or future law. The election of any one or more remedy by one of the parties shall not constitute a waiver by such party of the right to pursue any other remedy.
32.8 Termination of the Contract for any cause shall not release a party from any liability which at the time of termination has already accrued to such party or which thereafter may accrue in respect of any act or omission prior to such termination.
32.9 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry shall remain in full force and effect.
32.10 Each party must pay its own costs (direct or otherwise) in relation to the negotiation, preparation, execution, delivery, stamping, registration, completion, variation and discharge of the Contract.
32.11 Force Majeure Event
32.11.1 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:
220.127.116.11 promptly give the other parties notice of the Force Majeure Event and an estimate of the non-performance and delay;
18.104.22.168 take all reasonable steps to overcome the effects of the Force Majeure Event; and
22.214.171.124 resume performance as soon as practicable after the Force Majeure Event no longer affects that 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 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).
32.11.2 Creator must ensure that its production schedule for a Production that involves outdoor filming includes a back-up plan for inclement weather. If the Creator fails to have such a plan or to implement such a plan, then for the avoidance of doubt, clause 32.11.1 above will not apply to any resulting failure by Creator to meet its obligations under the Contract.
32.12.1 Each party shall treat and hold as secret and confidential all Confidential Information of any other party to the Contract that the recipient party may receive or which becomes known to the recipient party during the currency of, and pursuant to, the Contract.
32.12.2 Each recipient party shall, in respect of information received from the other, employ the same methods and endeavours to prevent such information becoming known to third parties as it does in respect of its own Confidential Information.
32.12.3 It is noted and agreed that no party will compromise the interests of any other party, by disclosing any of the other party’s know-how, client lists or any other Confidential Information to any third party in the provision of any service to such third party or otherwise. To this extent the parties specifically record that any information shared between them during the term of the Contract will be treated as confidential.
32.12.4 Unless agreed otherwise in writing, all written instructions, drawings, notes, memoranda and records of whatever nature relating to the Confidential Information of a disclosing party, which has or will come into the possession of the recipient party and its personnel, will be, and will at all times remain, the sole and absolute property of the disclosing party, and shall be promptly handed over to such Party when no longer required for the purposes of the Contract, subject to the recipient party’s document retention policies.
32.12.5 Each recipient party agrees and undertakes that, during the term of the Contract and thereafter for a period of 3 (three) years, it shall keep confidential and shall not use for its own purposes, nor without the prior written consent of the disclosing party disclose to any third party, all Confidential Information.
32.12.6 To the extent necessary to implement the provisions of the Contract, each disclosing party may disclose Confidential Information to those of its employees and representatives as may be reasonably necessary or desirable, provided that before any such disclosure each recipient party shall make those employees and representatives aware of its obligations of confidentiality under the Contract and shall at all times procure compliance by those employees and representatives with such obligations.
32.12.7 No recipient party shall use any disclosing party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract or to otherwise implement the provisions of the Contract.
32.12.8 We, the Client or the Creator may not make, or permit any person to make, any public announcement, communication or circular (announcement) concerning the Contract without the prior written consent of the other parties.
32.12.9 Upon termination or expiry of the Contract, the recipient party will deliver to the disclosing party or, at such disclosing party's option, destroy all originals and copies of Confidential Information in its possession, subject to the recipient party’s document retention policies.
32.12.10 The recipient party agrees that a breach, whether deliberately or negligently, of this clause 32.12 by a recipient party, its direct or indirect employees, agents, consultants, sub-contractors or representatives, including, without limitation, the actual or threatened disclosure or unauthorised use of a disclosing party’s Confidential Information without the prior express written consent of the disclosing party, shall be a material breach of the Contract and these Terms. Furthermore, that the disclosing party may suffer irreparable harm and damages, such that no remedy at law will afford it adequate protection against, or for which monetary relief may be inadequate. Accordingly, in addition to any other remedies available to it, a disclosing party shall be entitled to equitable relief, including damages, specific performance and any other appropriate relief against the recipient party for such breach or threatened disclosure. Any such relief will be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
32.13 Personal Information
32.13.1 Please refer to our Privacy & Cookies Policy for further explanation as to how we use the personal information we collect from you.
32.13.2 Where we provide personal information or personal data (each as defined in the applicable Data Protection Laws (defined below)) (together “personal information”) to the Client or the Creator in respect of the Contract:
126.96.36.199 the Client and the Creator shall each comply with applicable laws relating to data protection and privacy laws, including but not limited to the Protection of Personal Information Act, 4 of 2013 (“POPIA”), (“Data Protection Laws”);
188.8.131.52 where the Client or the Creator acts as a “processor” or “operator” (as defined in the applicable Data Protection Laws), it shall establish and maintain adequate security measures to secure the integrity and confidentiality of any personal information that it processes, shall follow the requirements in the applicable Data Protection Laws, including section 19 of POPIA (where applicable), and shall not provide or give access to such personal information to any third party without the responsible party’s prior, written consent; and
184.108.40.206 where the Client or the Creator acts as the “responsible party” or the “data controller” (as defined in the applicable Data Protection Laws), it shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal information to the other of them and to us so that the other party and/or we (as applicable) may lawfully use, process and transfer the personal information in accordance with these Terms; and
220.127.116.11 the provisions of this clause 32.13 are in addition to and do not relieve, remove or replace, a party’s obligations under the Data Protection Laws.
32.14.1 The Client, the Creator and we choose, for the purposes of the Contract and these Terms, the following addresses:
18.104.22.168 us: The registered address in clause 3 of these Terms;
22.214.171.124 Client and Creator: the physical address and email address provided to us on registration. To the extent required for legal purposes, and not already shared under clause 20.6, these will be provided to the Client or Creator (as applicable) upon written request, unless prohibited under applicable law.
32.14.2 Any legal process to be served on us, the Client or the Creator may be served on it at the address specified for it in clause 32.14.1 and it chooses that address as its domicilium citandi et executandi for all purposes under the Contract and these Terms.
32.14.3 Any notice or other communication to be given to us, the Client or the Creator (as applicable) in terms of the Contract or these Terms or shall be valid and effective only if it is given in writing, provided that any notice given by email shall be regarded for this purpose as having been given in writing.
32.14.4 A notice to us, the Client or the Creator (as applicable) which is sent by prepaid registered post in a correctly addressed envelope to the relevant address specified in clause 32.14.1 shall be deemed to have been received (unless the contrary is proved) within 14 (fourteen) days from the date on which it was posted, or which is delivered to us, the Client or the Creator (as applicable) by hand at that address is deemed to have been received on the day of delivery, provided it was delivered to a responsible person during ordinary business hours.
32.14.5 Each notice by email to us, the Client or the Creator (as applicable) at the relevant email address specified in clause 32.14.1 shall be deemed to have been received (unless the contrary is proved) within 4 (four) hours of transmission if it is transmitted during ordinary business hours of the receiving Party or within 4 (four) hours of the beginning of the next business day after it is transmitted, if it is transmitted outside those ordinary business hours.
32.14.6 Notwithstanding anything to the contrary in this clause 32.14 a written notice or other communication actually received by us, the Client or the Creator (as applicable) (and for which written receipt has been obtained) shall be adequate written notice or communication to it notwithstanding that the notice was not sent to or delivered at its chosen address.
32.14.7 We, the Client or the Creator (as applicable) may by written notice to the other parties change its address or email address for the purposes of this clause 32.14 to any other address (other than a post office box number) provided that the change shall become effective on the 7th (seventh) day after the receipt of the notice.