TERMS AND CONDITIONS / EXTRA RELEASE FORM
In consideration of the agreement of FA Project Arcadia Proprietary Limited (“Company”) to pay the Fee designated on the Voucher to which this Extra Release Form is attached (the sufficiency of which Extra hereby acknowledges), payable upon completion of Extra’s services hereunder to the satisfaction of Company, the Extra hereby agrees to furnish his/her services to Company as an Extra in accordance with the terms and conditions hereinafter set out:
1. The Extra will perform all duties and functions normally required for extras on a film set to the best of his/her skill and ability and comply with all of Company’s lawful and reasonable instructions at such places and at such times as Company shall designate. The Extra shall be present as and when required by the Company at such studios, other premises or on such locations as the Company may from time to time direct. The Extra shall comply with all studio and filming location regulations in force from time to time. The Extra shall comply with the policies of Company and producer at all times.
2. The Extra hereby acknowledges and agrees that Company shall own all rights now or hereafter known in and to the results and proceeds of Extra’s services under this Agreement, throughout the universe, in perpetuity, as a “work made for hire” by Extra for Company within the meaning of the U.S. Copyright Act and as commissioned works as envisaged under South Africa's Copyright Protection Act, 1978 and Performers Protection Act, 1967, with Company deemed the sole “author” and exclusive owner thereof. The Extra hereby waives the "droit moral" or "moral rights of authors" or any similar rights in and/or to the results and proceeds of the services rendered hereunder, or any portion thereof. If for any reason the results and proceeds of Extra’s services are not deemed to be a work-for-hire for Company or a commissioned work for Company, the Extra hereby irrevocably and unconditionally assigns to the Company and to its licensees, assignees, and other successors-in-interest all rights of every kind whatsoever now or hereafter known, throughout the universe, in perpetuity in and to his/her performance, appearance, name and/or voice and the results and proceeds thereof ("the Performance") in connection with the series tentatively entitled “Project Arcadia” (“the Series”) and Extra hereby authorises Company to photograph and record (on film, tape, or otherwise) the Performance, to edit the same at its discretion and to include it with or without the performance of others and with sound effects, special effects and music; to incorporate the same into the Series (and any products derived therefrom) or other program or not; to use and to license others to use such recordings and photographs in any manner or media whatsoever (including, without limitation, theatrical and non-theatrical exhibition, television exhibition, video, radio broadcast, online (including Internet) or otherwise); and to use the same for purposes of publicity, marketing, advertising, merchandising, and sales promotion. If any applicable law prohibits or restricts such assignment, Extra hereby grants Company an irrevocable, exclusive, royalty-free license to utilize and exploit all right, title and interest in and to the Extra's Performance and any other works now or hereafter created containing the Extra's Performance, in any and all manner and media now known or hereafter developed, throughout the universe, in perpetuity. All so called neighbouring rights, rental and lending rights and cable re-transmission rights under national laws (whether implemented pursuant to the EC Rental and Lending Rights Directive or otherwise) or any other rights granted, transferred, conveyed or otherwise conferred upon Extra, whether under the laws and/or regulations of any jurisdiction or territory throughout the world, shall be deemed waived, transferred, granted and/or assigned to Company hereunder and the consideration set forth herein to Extra shall be deemed inclusive of consideration for and equitable payment for any such rights.
3. The Extra grants Company the right to use Extra's name, photograph, likeness, voice and professional biography in credits, advertising, publicity, financial and exploitational material in connection with the Series or other new media, television or motion picture productions, and Extra's services and the results and proceeds hereunder, including material containing the name of commercial products so long as no endorsement or testimonial of such commercial products is attributed to Extra. Extra hereby grants Company the right to shoot "behind the scenes" footage and to use Extra's name, likeness and voice in, without limitation, publicity related photographs, "outtakes/behind the scenes" films, "electronic press kit(s)", video releases, and in connection with any development, production, advertising, publicity, publishing, merchandising, or exploitation of the Series.
4. The Extra hereby expressly confirms his/her consent to Company for making motion pictures and still photographs of Extra and/or sound recordings of Extra’s vocal and/or instrumental performances and/or other sound effects or other material created and/or performed by the Extra (“the Musical Material”). The Extra hereby irrevocably and unconditionally grants to the Company all right, title and interest throughout the universe in perpetuity, including without limitation copyright (and all renewals, extensions and restorations thereof) and neighbouring rights, in and to all Musical Material, whether vocal, instrumental, or otherwise recorded, created, and/or performed by Extra. This shall include without limitation, any title, words, music, arrangements, adaptations or other versions of the music recorded for Company in connection with the Series using the Extra’s performance and/or Musical Material. It shall include, without limitation, soundtrack rights being the perpetual right throughout the universe to utilise the soundtrack(s) of the Series or any portion thereof containing Extra’s voice and/or instrumental or other performance, or Musical Material, or any re-recordings thereof, in connection with the manufacture, distribution, sale, use or other exploitation of commercial sound recordings, whether or not paired with visuals, in any media, whether now known or hereafter devised, on a buy-out basis, for the reproduction of sound and all of the results and proceeds of Extra’s Services. Extra’s consideration in respect of this consent and the rights granted herein are included in the compensation on a buy-out basis to be paid to Extra pursuant to this Agreement.
5. The Extra shall not issue any publicity nor make any statement concerning Company, the Series or Extra's services hereunder without Company's prior written consent in each instance. Extra understands and agrees that a material obligation of Extra's engagement hereunder is to keep the Series and all matters in connection with Extra’s services hereunder confidential. Extra agrees to keep secure and not to circulate, publish, or disclose to any third party the nature of Extra's engagement or any confidential or proprietary information or materials provided to Extra by Company. Any information or materials provided to Extra by Company shall remain the property of Company and Extra shall promptly return to Company all such tangible information and materials (including, without limitation, scripts, breakdowns, etc.) following Extra’s services. Extra shall not make any use of such material, shall not furnish or disclose it to anyone else, nor copy or otherwise reproduce or store any material provided by Company hereunder.
Extra shall not make recordings (including but not limited to photographs, video and audio) of any part of the Series. Extra agrees not to make or authorize any news stories, blogs, articles, books or other publicity relating directly or indirectly to this Agreement, Extra's engagement hereunder, the subject matter hereof, or the Series, without Company’s prior written approval. Among other damages, unauthorized disclosure of confidential or proprietary information will (a) damage Company’s carefully planned marketing, publicity, advertising and promotion strategies, (b) reduce interest in the Series, (c) spoil viewers' experience, (d) make unique or novel elements of the Series susceptible to imitation or copying in other entertainment projects produced by third parties prior to the Series’ release, (e) provide unauthorized third parties with the ability to make copies of the Series and (f) provide unauthorized third parties with materials capable of being used to create counterfeit and unauthorized film-related merchandise; all of which will seriously limit Company’s revenues from exploitation of the Series.
6. The Extra hereby releases Company, its parents, subsidiaries and affiliated companies, distributors, successors, assigns and licensees and the respective shareholders, directors, officers, employees, representatives and agents of the foregoing (the “Company Parties”) from any and all claims and demands arising out of or in connection with the use of the Performance and the rights granted herein including, without limitation, any and all claims for invasion of privacy, infringement of the right of publicity or personality, infringement of moral or performance rights, defamation (including libel and slander) and any other personal and/or property rights.
7. The Extra hereby acknowledges that Company shall have no obligation to utilize the Performance, or Extra's name or likeness, in the Series or in any other new media, television, or motion picture production.
8. The Extra shall, if required, provide such modern wardrobe as the Company may direct Extra to wear for the purposes of the Series, but Company shall provide costumes of a special or fancy character. Company and/or Company Parties shall not be liable for any loss of or damage to any clothes, effects or any other property whatsoever belonging to or in the possession of Extra. Wardrobe and property provided by Company shall remain its property. Extra shall upon completion of her/his services, or at any stage upon demand by Company, duly return to Company all property and wardrobe provided by Company in connection with the Series.
9. The Extra and his/her heirs and successors hereby waive and abandon all claims for damages resulting from death, injury, loss or damage to persons or property from whatsoever cause arising against Company and/or Company Parties and hereby indemnifies and holds harmless Company and the Company Parties against any claim, action, losses, penalties, expenses or damages (including, without limitation, legal fees and expenses), she/he and/or his/her heirs, successors in title, trustees and or any other person or entity may acquire as a result of death, injury or damage to Extra and/or his /her property. The Extra in any event indemnifies and holds harmless Company and the Company Parties against any claims, actions, losses, penalties, expenses or damages (including, without limitation, legal fees and expenses), which may be instituted against Company and/or the Company Parties by a third party arising out of any act or omission on the part of Extra.
10. The Extra hereby acknowledges that: (i) Extra shall not be deemed to be an employee of Company or Company Parties, nor shall Extra be entitled to the benefits provided by Company to its employees, (ii) Extra shall not be entitled to any further sums whatsoever by reason of the exploitation of the Series and/or any products deriving from the Series; and (ii) notwithstanding anything herein to the contrary, Extra's sole remedy in connection with this Agreement (including, without limitation in the event of a breach by Company hereunder) shall be limited to any actual damages suffered and Extra shall not have any right to terminate or rescind this Agreement or any of the rights granted to Company hereunder or to enjoin or restrain the development, production, advertising, promotion, distribution, exhibition and/or any exploitation of the Series and/or any ancillary and/or subsidiary rights therein and thereto and any advertising or publicity in connection therewith. The Extra warrants that Extra has right to enter into this Agreement and grant the rights in the Agreement; (ii) any material created, added or submitted by Extra for the Series is original.
11. In the event of any breach of any of the provisions of this Agreement, in addition to all of Company’s other rights and remedies (including, but not limited to, the right to bring suit against Extra for lost revenues), Company shall be entitled to equitable relief, including injunctive relief.
12. Company shall make those deductions from amounts due to Extra as required by the South African Revenue Services.
13. The Extra may not cede his/her rights or delegate his/her obligations under this Agreement in whole or in part. Company shall be entitled to assign this Agreement to any third party.
14. It is the policy of the Company to comply fully with the anti-corruption laws of South Africa (including, without limitation, the Prevention and Combating of Corrupt Activities Act (“PRECCA”)), the US (including, without limitation, the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Section 78dd-1 and 78dd-2, as amended from time to time, ("FCPA")), the UK (including without limitation, the Bribery Act 2010, as amended from time to time ("Bribery Act")) and any other applicable anti-corruption laws and legislation anywhere in the world (collectively and individually, the "Anti-Corruption Policy"). The Extra represents and warrants that the Extra has not and will not directly or indirectly make any payment(s) or give anything of value to any government employee or official with respect to the Series, or any activity related thereto for the purpose of influencing any decision and/or action of such government employee or official in their official capacity.
15. HEALTH AND SAFETY RULES:
The parties hereto acknowledge and agree that the creation and maintenance of a safe working environment is essential. The Extra shall comply with occupational safety and health standards and all rules, regulations and orders pursuant to applicable laws ("Health and Safety Rules") with regard to Extra’s actions and conduct hereunder. Willful failure and/or negligence to follow any safety rules and regulations included in the Health and Safety Rules may result in the termination of Extra's engagement in terms of this Agreement.
16. ARBITRATION: For any dispute arising out of or relating to this Agreement (whether arising in contract, tort or otherwise) (“Dispute”), the parties shall follow the arbitration procedure as set out below. The provisions of this clause 14 are separate and severable from the rest of this Agreement and, accordingly, shall remain in effect despite the termination or invalidity for any reason of this Agreement. If a Dispute arises, the parties shall first attempt to resolve it by mutual agreement between a representative of the Extra and a representative of the Company (the “Notification”). Should such agreement not be reached, within thirty (30) days of the Notification, either party may refer the Dispute to binding arbitration for final resolution.
Arbitration shall be held in Cape Town informally and otherwise in accordance with the expedited rules of AFSA within thirty (30) days after it has been demanded. Save as otherwise specifically provided herein, the arbitrator shall be if the matter in dispute is: (i) primarily a legal matter, a practicing Advocate of the Cape Bar; (ii) any other matter, an independent and suitably qualified person as may be agreed upon between the parties to the dispute.
If an agreement cannot be reached on whether the question in dispute falls under (i) or (ii) above and/or upon a particular arbitrator within 3 (three) business days after arbitration has been demanded, then the President for the time being of the Legal Practice Council shall: determine whether the question in dispute falls under (i) or (ii) above; and/or nominate the arbitrator within 7 (seven) days after the parties have failed to agree. The arbitrator shall give his or her decision within 5 (five) days after the completion of the arbitration. The arbitrator may determine that the costs of the arbitration are to be paid by one or the other or by both of the parties. The decision of the arbitrator shall be final and binding.
17. Production Company is compliant with the Protection of Personal Information Act 4 of 2013 (as amended) and pursuant thereto Extra hereby acknowledges that the Production Company shall collect, use and otherwise process certain personal data relating to Extra for the purposes of carrying out actions required for the conclusion of this Agreement and the ongoing exercise of the rights granted by the Artist to the Company, including the exhibition and distribution of the Series , including Production Company fulfilling its obligations under the Agreement and complying with legal and regulatory obligations related to the performance of this Agreement. Production Company hereby informs you that you have certain rights in respect of your personal data (such as access, rectification and deletion) and that further information about these rights and Production Company's processing of personal data generally can be obtained upon request from Production Company.
18. This Agreement shall in all respects be construed and governed by the laws of South Africa and Extra consents to the exclusive jurisdiction of the South African courts.
19. This Agreement consists of the Voucher and the Extra Release Form, which constitutes the entire agreement between the parties hereto. Except as otherwise expressly provided, no variation, modification or amendment of any of the provisions of this Agreement, or any agreement to cancel or terminate it, shall be effective unless made in writing and duly signed by the parties hereto.