Terms & Conditions
General Terms & Conditions of Trade
February 2022
Definitions
Certificate of Risk Assessment means a GFS Risk issued Certificate of Risk Assessment and License as evidence that the Production has undertaken the assessment phase of risk management.
Client means the company or individual engaging the Contractor and receiving information, outputs or Services from the Contractor. The term Client also includes prospective clients for whom the Contractor provides any output.
Contractor means GFS Risk Limited (“GFS” or “GFS Risk”) and will include any successors or assigns of GFS, any affiliate or related company of GFS, any person or entity acting on behalf of GFS or with the permission or authority of GFS.
Contract for Services means a contract incorporating Key Deal Terms and these General Terms and Conditions, which is entered into between the Client and the Contractor for the provision of Services.
Estimate means a non-binding statement in writing of the approximate cost or price of goods or services to be provided by the Contractor to the Client.
Fee means the fee payable for the Services as detailed in the Key Deal Terms between the Contractor and the Client.
General Terms and Conditions means these General Terms and Conditions of Trade as set out in this document.
GST means the goods and services tax or other like tax arising under the Goods and Services Tax Act 1985.
Key Deal Terms means the contract terms which are specific to the individual contract entered into between the Contractor and each Client and which are agreed to by the Parties.
Network refers to the company or entity who purchases and/or distributes a Production.
OverWatch is a GFS Risk service which includes tracking and monitoring services, reporting and analysis targeted to a geographic location’s safety, security, medical, social, geopolitical and Covid-19 related risks.
Party or Parties means the parties to these General Terms and Conditions of Trade and their respective successors or assigns.
Production means the creative development of a film or media program.
Production Company refers to the company or organisation which is responsible for creating the Production.
Quote means a statement in writing detailing the Fees or other costs relating to the Services.
Risk Assessment means the report which may be provided by the Contractor to a Client, which identifies hazards and provides recommendations and next steps to assist the Client in the implementation of appropriate risk mitigation.
Services means all risk management services provided or supplied by the Contractor to the Client and includes, without limitation, any risk assessments, consultancy, reporting, monitoring, security, safety or medical deployments, and the provision of production services (as may be further detailed in the Key Deal Terms).
User refers to a person in receipt of GFS Risk OverWatch Services, and is usually an employee or representative of the Client.
Terms
Application
These General Terms and Conditions apply to instructions provided by the Client to the Contractor and to all agreements for the supply of Services between the Client and the Contractor.
If a Client consists of more than one individual or entity, these General Terms and Conditions bind them all jointly and severally.
The Contractor’s relationship with any Client is that of an independent contractor, and nothing in any Contract for Services will be deemed to create any joint venture, partnership or employment relationship between the Parties.
Services
In consideration of the Client paying all relevant Fees to the Contractor, the Contractor will use best endeavours to provide the Services to the Client in accordance with the Key Deal Terms (if applicable) and these General Terms and Conditions.
Acceptance of terms
Any engagement with the Contractor for Services will constitute acceptance of these General Terms and Conditions by the Client.
By engaging with the Contractor, the Client acknowledges that it has read and understands these General Terms and Conditions and agrees to be bound by the obligations herein.
Fees
In consideration of the Contractor providing the Services to the Client, the Client will pay the Fees invoiced in accordance with the Key Deal Terms (if applicable) and these General Terms and Conditions.
A mobilization Fee is applied to each deployment by the Contractor of a consultant (if applicable).
Quoted fees
A Quoted Fee will be valid for the period of time stated on the Quote and will not change provided that the Client accepts the Quote in writing within the stated acceptance period.
Estimates
If it becomes apparent that the Contractor’s costs are likely to exceed the Estimate by more than 10%, the Contractor will advise the Client as soon as possible and provide a revised Estimate.
Tax
Where relevant, GST and any other taxes and duties that may apply will be added to the Fee unless expressly included in the Fee.
Expenses/Disbursements
Subject to Client’s written pre-approval, the Contractor may incur and charge for reasonable expenses and/or disbursements which were not initially quoted for, but which have arisen in the provision of the Service.
Charges for security, safety and medical consultants
The Fee for any security, safety or medical consultants deployed by the Contractor as part of the Services:
a. will be charged to the Client at a prevailing daily rate or at a full deployment rate set by the Contractor and accepted by the Client; and
b. will take into account the level of expertise and experience of the consultant.
The Contractor will only deploy security, safety or medical consultant holding the appropriate level of expertise, which reflects the level of risk the Contractor attributes to the location of the deployment and/or the activities being undertaken.
The Contractor retains the right to refuse to provide a consultant in any circumstances where the level of expertise of the consultant being requested by the Client is, in the opinion of the Contractor, not commensurate with the level of risk which will be faced on location, or in any other circumstance where the Contractor believes that the risk cannot be adequately mitigated and managed.
The Fee for the deployment of any consultant of the Contractor will be disclosed in a Quote provided to the Client.
Invoices and payment terms
Unless otherwise agreed in writing, all orders for Services will be invoiced at the time that the Services are first dispatched or supplied.
If the Parties agree, or the Contractor requires, the Fee to be payable by installments, then invoices for each installment will be provided at the times set out in the Key Deal Terms.
Invoices are payable within seven (7) days of receipt of invoice, unless otherwise agreed.
Payments will not be deemed to be received unless and until the payment is received to the Contractor’s nominated bank account as listed on the invoice.
Bank wire charges are to be paid by the payer.
Default on payment
Where the Client fails to pay any undisputed amount as due to the Contractor by the due date for payment, the Contractor may, at its sole discretion:
a. charge the Client penalty interest at a rate of 10% per month from the due date, accruing daily and compounding monthly at this rate; and
b. suspend or cancel the supply of any or all Services to the Client without incurring any liability to the Client.
Without limiting any other right or remedy of the Contractor, if the Client defaults in payment of any invoice due, the Client will pay all costs and disbursements incurred by the Contractor in pursuing the debt, including legal costs on a solicitor and own client basis.
Credit
The Client will use its reasonable endeavors to ensure that the distributors and/or broadcasters of the Production accord the Contractor an on-screen credit on all copies of the Production (placement at the sole discretion of the Client) to read as: “Risk Management – GFS Risk Ltd”.
Confidentiality
The Parties agree at all times to treat as strictly confidential all matters arising out of any Contract for Services, including, without limitation, the contents of any Production or any other information supplied to that Party by the other Party in relation to the subject matter of any Contract for Services, except to the extent that Party can show that the information has entered the public domain other than as a result of a breach by that Party of this clause or as may be required by law.
Property
If the Services include the deployment of security, safety or medical consultants, the Contractor will be responsible for any loss of, or damage to, the Client’s property and any other property in the sole care of the Contractor or its personnel during or in connection with the provision of the Services (fair wear and tear excepted). The Contractor will not be liable under this clause to the extent the loss or damage was caused by any act or omission of the Client, its personnel or its contracted agents.
Insurance
The Contractor will hold appropriate insurance policies during the term of the Contract for Services. Certificates of currency relating to these policies will be made available to the Client on request.
Termination
In respect of any Contract for Services to which these General Terms and Conditions apply, either Party may terminate, by giving prior written notice to the other Party, in any of the following events:
a. if the other Party is in breach of any material obligation under the Contract for Services and fails to remedy the breach within seven (7) days of notice thereof from the Client; or
b. either Party becomes, or is deemed to be, bankrupt or insolvent; or
c. a Party is unable to pay its debts as and when they fall due or compounds with its creditors or assigns any of its assets for the benefit of creditors.
Notwithstanding the above, the Client will be obliged to pay any Fees due to the Contractor and any expenses (if any) incurred by the Contractor in performing its services up until the date of termination of the Contract for Services.
Assignments
The Contractor may assign any Contract for Services with the Client in whole or in part to any third party. In which case, the Contractor will be relieved of all liabilities and obligations under the relevant Contract for Service provided that the assignee has entered into a covenant in favour of the Client to observe and perform all liabilities and obligations of the Contractor under the Contract for Services. If no such covenant has been secured, then the Contractor will remain secondarily liable under the Contract for Services.
Subcontractors
The Contractor may engage subcontractors to meet any of the Contractor’s responsibilities under any Contract for Services, provided that the Contractor has exercised due care in selecting the subcontractors. The Contractor shall remain responsible for the Services and management of any subcontractor.
Intellectual Property/Copyright
Where the Contractor has designed, drafted or supplied written works for the Client, such as Risk Assessments, plans or protocols, then the copyright and any other proprietary right in those works and documents will remain vested in the Contractor and will be used under licence by the Client.
The licensing of and permission to use any Risk Assessments, plans, protocols or reports is limited exclusively to the Client in the specified locations, for the sole purpose of managing risk for the relevant Production activities and may not be distributed or re-produced for any other purpose.
License for Use: Risk Assessments
Where the Contractor provides a Risk Assessment as part of the Services it is acknowledged that the Risk Assessment will only be licensed for use by the Client upon completion of both the following events:
a. the Client’s completion and submission of a Risk Assessment Response Form; and
b. the Contractor’s receipt of payment for the Risk Assessment Service from the Client.
It is the sole decision of the Client to implement any of the recommendations in the Risk Assessment.
Risk Assessment Certificate of Compliance
The Certificate of Risk Assessment certifies that the Client has completed the “Assess” stage of the risk management process and will be provided once the Client has paid for the Risk Assessment and submitted the Risk Assessment Response form. The Client is licensed to utilize the Risk Assessment for the License Validity Period noted on the Certificate. When providing risk assessment services, the Contractor reserves the right not to issue a Certificate of Risk Assessment to the Client until full payment is received for the Risk Assessment.
Client’s obligations to Contractor / Contractor’s right to withdraw
The Services supplied by the Contractor are developed and provided on the basis of material and information provided by the Client. If there is any change in factual information or circumstances, it is the responsibility of the Client to notify the Contractor of these changes as soon as practicable, as an adjustment to the Services and/or the documentation and recommendations provided may be required.
The Contractor reserves the right to withdraw or suspend the Services in the event of any material changes to circumstances with respect to the Production or Production personnel, which may adversely impact the Contractor’s ability to safely provide the Services (as determined by the Contractor acting reasonably). Any such withdraw or suspension of Services will not be construed as a cancellation, termination, or breach of the Contract for Services. The Client will not be liable for Fees following any such withdrawal or suspension in relation to Services not provided.
The Services will not cover any elements or outcomes which result either directly or indirectly from material changes and/or information that have not been notified to the Contractor.
OverWatch Services Conditions of Use
Static location reports are valid at the time of publication.
Users agree to GFS Risk collecting tracking data from Users subscribing to OverWatch tracking and location monitoring services and consent to the use of third party applications to track Users. GFS Risk may require Users to install third party applications on their smart devices or satellite phones in order to access these services. The Client will provide all necessary assistance to ensure the applications are installed.
Tracking services rely on the location and accuracy of the internal GPS on the smart device/satellite phone of the User.
GFS Risk does not guarantee that it will be aware of all incidents or events that may impact Users.
To the fullest extent permitted by law, GFS Risk will not be liable for the decisions made by the Client and/or Users, or the outcome of those decisions, which are based on the information or advice which the Contractor has provided in relation to any of the Services.
Obligations of OverWatch Clients and Users
When using OverWatch tracking services, the Client will use all reasonable endeavours to ensure that all Users:
a. remain in possession of their device at all times,
b. have a reliable data connection;
c. ensure the tracking application is operational;
d. ensure devices have sufficient power to operate at all times;
e. respond to any status requests when requested to do so; and
f. inform GFS Risk of any change to a mobile or cell number during the contract period.
The Client accepts that:
a. non-activation or de-activation of the tracking application on a User’s device will result in the termination of OverWatch coverage;
b. termination of coverage for non-activation or de-activation of a device will not give rise to any liability on the part of GFS Risk;
c. GFS Risk will not make any refund of Fees based on the non-activation or deactivation of a tracking application by a User; and
d. OverWatch tracking is not to be considered as a replacement or substitute for an official emergency service.
Security, Safety and Medical Consultants – Conditions of Use
The Contractor will use all reasonable endeavours to ensure that any security, safety or medical consultant deployed holds a level of expertise appropriate to the level of risk which the Contractor has assessed as being present at the location of the deployment and/or the activities being undertaken.
The Contractor may refuse to provide a consultant in any circumstances where the level of expertise of the consultant being requested by the Client is, in the opinion of the Contractor, not commensurate with the level of risk which will be faced on location, or in any other circumstance where the Contractor believes that the risk cannot be adequately mitigated and managed.
Where a security, safety or medical consultant is deployed by the Contractor as part of the Services, the Client agrees and accepts that:
a. the Client, its employees, agents and representatives will follow the expert advice provided by the consultant and will not knowingly act or fail to act in a way that undermines or conflicts with the expert advice provided by the consultant;
b. the Contractor will not be responsible or liable for any act or failure which is knowingly undertaken in contravention of the security, safety or medical advice provided by the consultant; and
c. the daily hours of work required of any consultant will be reasonable and will not exceed what is generally deemed to be safe working conditions.
Information Security
In the performance of Services, GFS Risk will request personal information from Clients and Users. This may include medical information.
Information will only be collected where it is submitted knowingly and voluntarily and will only be used for the purposes for which it has been submitted.
GFS Risk will not share this information with other parties unless:
a. required by law;
b. as assessed to be beneficial to a User in response to an OverWatch incident or emergency; or
c. with the prior approval of the Client or User.
Applicable law and jurisdiction
These General Terms and Conditions and any Contract for Service to which they apply will be governed by, construed and take effect in accordance with the laws of New Zealand. The parties agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.
Disputes
The Contractor and Client must use all reasonable endeavours, acting in good faith and in a timely manner, to resolve any dispute or difference which may arise between them in connection with any Contract for Services (a “Dispute”).
If the parties are unable to resolve the Dispute within 20 working days of the Dispute first being notified to the other Party, either Party may submit the Dispute to arbitration under the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule to that Act). The arbitration will be conducted by one arbitrator agreed by the parties or (failing agreement within 3 working days after the date of submission to arbitration) appointed by the President of the New Zealand Law Society or his or her nominee. The decision of the arbitrator will be final and binding on the parties, and the costs of the arbitrator will (subject to any award by the arbitrator) be borne equally by them. Nothing in this clause precludes a party from commencing court proceedings in relation to any Dispute at any time where that party seeks urgent interlocutory relief.
Notices
All notices hereunder must be in writing, to the respective addresses identified on the Contract for Services (or at such other address as either Party may supply by written notice delivered in accordance herewith), and will be deemed given: (i) if sent by overnight courier service, the second business day following dispatch; or (ii) if sent by email, upon delivery, as confirmed by automated receipt or electronic logs.
Waivers
No delay, neglect or forbearance by either Party in enforcing against the other Party any provision of a contract will be a waiver, or in any way prejudice the right of that Party.
Disclaimers
GFS supplies all Services (including any recommendation or information in a Risk Assessment or OverWatch report) to the Client on an “as is” basis without any warranty of any kind. GFS does not accept any responsibility or liability for the accuracy, content, completeness, legality or reliability of the Services supplied under any Contract for Services. The Contractor is not providing legal, insurance, accounting, medical safety or other professional advice and no professional-client relationship between GFS and the Client is created.
Limitation of liability
To the fullest extent permitted by law, in no event will the Contractor be liable for any loss of profit, loss of revenue, lost production or downtime in filming, or any indirect, incidental, special, exemplary, punitive, or consequential losses or damages.
To the fullest extent permitted by law, the maximum aggregate liability of the Contractor to the Client under or in connection with any Contract for Services will be limited to the amount of all Fees payable by the Client to the Contractor under the relevant Contract for Services.
Events beyond control of the Parties
With the exception of any circumstances, events or conditions now known or reasonably contemplated at the time of contracting, neither Party to a Contract for Services will be liable for failure to perform its obligations if the failure results from a Force Majeure event. For the purpose of this clause, a “Force Majeure” event means (without limitation) any act of God, global pandemic other than the Covid-19 pandemic, fire, explosion, natural disaster, war, act of terrorism, civil commotion, industrial dispute, or any other event beyond a Party’s reasonable control.
Set off
The Client will not be able to set off against or deduct from the price any sums owed or claimed to be owed to the Client by the Contractor.
Headings
The headings in these General Terms and Conditions and the Key Deal Terms t are solely for convenience and will not affect its interpretation.
Severability and Survival
If any part of these Terms and Conditions is found invalid or unenforceable by a court of competent jurisdiction, the remainder of these General Terms and Conditions will be interpreted so as to reasonably effectuate the intention of the parties and will not affect the validity and enforceability of any remaining provisions.
The following sections of these General Terms and Conditions will survive any cancellation or termination of a Contract for Services: Confidentiality, Intellectual Property/Copyright; Applicable Law and Jurisdiction, Limitation of Liability.
Miscellaneous
Any Contract for Services to which these General Terms and Conditions apply may only be amended by the written agreement of the Parties. Any Contract for Services may be executed in one or more counterparts, each of which will be deemed an original, but all of which, taken together, will constitute one and the same document. Any signed copy of a Contract for Services received via email, facsimile, DocuSign (or similar) will be deemed an original.