1.1) OBLIGATIONS Applicants are not permitted to: 1.1.1) engage in any shoots that will in any way damage the image, good name and/or reputation of the V&A; 1.1.2) interview members of the public, unless permission is given in writing by the V&A and the individual concerned has agreed to conduct such interview; 1.1.3) harass or interfere with members of the public or cause obstructions in public areas; 1.1.4) have private security at the shoot, unless the V&A consents to same in writing, which security must be arranged with the V&A in advance and will be charged by the V&A for the security at an hourly rate; 1.1.5) alter the V&A’s property; 1.1.6) park any vehicles on the V&A’s property, other than in the V&A designated parking areas at the prescribed tariffs, unless otherwise agreed to in writing by the V&A; 1.1.7) make use of any of the V&A tenants’ premises as background for shoots without prior arrangement with the tenant or the owner themselves; 1.1.8) make use of private yachts or boats, unless they are registered charter boats with the V&A; 1.1.9) make use of charter boat jetties without prior written approval of the V&A; 1.1.10) have any open fires or braais on the V&A’s property; and 1.1.11) do anything that will impair the V&A’s good name and reputation. 1.2) The Applicant acknowledges and understands that the V&A only permits the Applicant to make use of the Location (as set out in the Application Form) for the Production. The Applicant is not permitted to make use of any other location at the V&A Waterfront, without the prior written consent of the V&A. Further, should the Applicant wish to make use of any tenant’s leased premises for the Production it is the responsibility of the Applicant to first obtain the written permission from such tenant. 2) PAYMENT Once the Application has been approved the V&A will invoice the Applicant for the fee for the use of the Location. This fee must be paid in full before the commencement of the Production, failing which the Applicant shall not be permitted to make use of the Location. 3) BREACH Should the Applicant commit a breach of this Agreement the V&A is entitled, without prejudice to any other rights it may have in law, to immediately stop all activities and cancel this Agreement. 4) RULES AND REGULATIONS; LICENCES / PERMITS AND APPLICABLE LAWS 4.1) The Applicant (and its contractors) shall at all times comply with the provisions of all relevant legislation and regulations, including but not limited to, the provisions of the Occupational Health and Safety Act (as amended from time to time). 4.2) The Applicant shall be liable for obtaining all necessary licenses and permits pertaining to the City of Cape Town Regulations. 4.3) The Applicant shall not contravene or permit the contravention of any applicable law or the conditions of any licenses or permits. 5) INSURANCE 5.1) The Applicant shall obtain and maintain, at its sole cost and expense suitable and adequate insurance cover, including but not limited to Public Liability Insurance, and proof to be provided within 2 (two) days of the Filming Permit being granted by the V&A. 5.2) The Applicant shall on request from the V&A furnish the V&A with a certificate from its insurers confirming such insurance cover. 5.3) The Applicant shall not do anything that will detrimentally affect the V&A’s own insurance cover. It is recorded that under no circumstances will the Applicant be covered under the V&A’s insurance. 5.4) I It is agreed that: 5.4.1) any failure by the Applicant to procure or maintain the insurance cover referred to above in sub-clause 5.1; or 5.4.2) any failure by the Applicant to procure or maintain adequate insurance cover to cater for its liabilities and exposures in terms of this agreement; or 5.4.3) any repudiation (whether in whole or in part) by the insurer of a claim under the relevant insurance policy; or 5.4.4) any liability, loss or damage for which the Applicant is responsible and liable in terms of this agreement is not covered by the said insurance cover, shall not release the Applicant from the full extent of its liability to the V&A or any third party for any loss, damage, injury or death arising out of or in any way related to or in connection with the service or the business being conducted by the Applicant and/ or arising out of or in connection with any act or omission on the part of the Applicant, its employees or contractors and the Applicant agrees to indemnify the V&A from any claims in this regard. 6) INDEMNITY 6.1) The Applicant hereby indemnifies and holds harmless the V&A, their officers, employees and/or agents from and against any and all claims, actions, losses, damages, liabilities or expenses which they or their employees may suffer as a result of any occurrence in, upon, at or around the V&A Waterfront or any parts thereof, unless caused by the negligence of the V&A, its employees, officers or agents. 6.2) The Applicant hereby indemnifies and holds harmless the V&A, their officers, employees and/or agents from and against any and all claims, actions, losses, damages, liabilities or expenses arising out of or in any way related to or in connection with the Production by the Applicant and/or arising out of or in connection with any act or omission on the part of the Applicant, its employees or contractors, unless caused by the negligence of the V&A, their employees or agents. 6.3) In the event that the V&A shall, without fault on their part, be made a Party to any litigation commenced by or against the Applicant, then the Applicant shall indemnify the V&A and hold it harmless against all claims and (without prejudice to any other rights the V&A may have in law) shall pay all costs, expenses and legal fees (including without limitation attorney and client fees) incurred or paid by the V&A in connection with such litigation. 7) DAMAGE TO V&A’S PROPERTY The Applicant shall be liable for any and all damage caused to the V&A’s property howsoever arising from or out of any occurrence connected with the Production, whether occasioned wholly or in part by any act or omission, or the negligence or gross negligence of the Applicant, their officers, employees, agents, suppliers, or contractors. 8) EXPEDITED DISPUTE RESOLUTION 8.1) The Parties recognize and agree that any dispute between them should be resolved as expeditiously as possible. The dispute shall be finally resolved in Cape Town in English, in accordance with the Arbitration Foundation of Southern Africa (“AFSA”) Rules for Expedited Arbitrations or, if AFSA has ceased to exist, the Arbitration Act, No 42 of 1965. The arbitrator shall be appointed by AFSA. 8.2) Nothing herein contained shall be deemed to prevent or prohibit a party to this agreement from access to an appropriate court of law for – 8.2.1) interim or urgent relief in form of an interdict mandamus or order for specific performance pending the outcome of an arbitration in terms of this clause or in respect of such an arbitration; 8.2.2) any other form of relief on the basis of facts which are not disputed; 8.2.3) payment of any amount due in terms of this Agreement; or 8.2.4) an order for payment of a liquidated amount in money on the basis of facts which are not bona fide in dispute at the commencement of such proceedings. 8.3) The Parties agree that the arbitrator’s award can be made an order of court at the election of either Party. The Party wishing to make the award an order of court shall bear the costs of same. 8.4) This provision will continue to be binding on the parties notwithstanding any termination or cancellation of this agreement. 8.5) Should the V&A consult its attorneys, or institute action against the Applicant, in order to enforce any terms of this Agreement, then without prejudice to any other right which the V&A may have, the V&A shall be entitled to recover from the Applicant all legal costs reasonably incurred by it, including but not limited to it’s attorneys fees as between attorney and own client, tracing fees and such collection commission as the V&A may be obliged to pay to it’s attorneys, and the Applicant waives taxation thereof according to any prescribed tariff. 9) CONTRACTORS Should the Applicant appoint any contractor in respect of the Production in terms of this Agreement, the Applicant shall take responsibility for all acts and omissions of such contractors, shall ensure that such contractors comply with all the provisions of this Agreement and the obligations and responsibilities in terms hereof and shall indemnify the V&A from any loss or liability arising from any acts or omissions of such contractors unless caused by the V&A’s negligence or willful misconduct. 10) STRUCTURES, SET UP AND BREAKDOWN Should the Applicant erect any structures in respect of the Production they must adhere to all safety processes and procedures set out in the Safety Requirements attached hereto as Annexure “B”. 11) DOMICILIUM AND NOTICES 11.1) The Parties choose their domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purpose arising from this Agreement as follows – The V&A: V&A Waterfront Head Office Waterway House 3 Dock Road V&A Waterfront Cape Town, 8001 Email: filmshoots@waterfront.co.za The Applicant – as per Application Form 11.2) Each of the Parties shall be entitled from time to time by written notice to the other to vary its domicilium to any other physical address within the Republic of South Africa, or its email address. 11.3) Any notice given by either Party to the other (“addressee”) which – 11.3.1) is delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery; 11.3.2) is posted by prepaid registered post from an address within the Republic of South Africa to the addressee at the addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee to have been received by the addressee on the 4th (fourth) day after the date of posting; 11.3.3) is sent by email to the particular addressee’s domicilium for the time being shall be rebuttably presumed to have been received by the addressee on transmission thereof. 12) CONFIDENTIALITY All Parties shall keep confidential all information entrusted to them and which may come into its possession in the course of negotiations, and as contained in this Agreement and none of the Parties shall disclose it to any third party without the prior written consent. 13) ANNOUNCEMENTS Neither Party shall disclose or publish any part of the details related to the services or the object of this Agreement to a third party, without the prior written consent of the other Party. Any public announcement or press release should be subject to a prior written approval of both Parties. 14) UNCONTROLLABLE EVENT (FORCE MAJEURE) 14.1) In the event that either Party shall be delayed, hindered in or prevented from doing or performing any act or thing required hereunder by reason of an Uncontrollable Event, then that Party shall not be responsible for such delays and the doing or performing of such act or thing shall be excused for the period of delay, and the period for the performance of any such act or thing shall be extended for a period equivalent to the period of such delay. 14.2) The purposes of this provision an “Uncontrollable Event” means any circumstance beyond the reasonable control of either Party including (without limitation) infectious or contagious diseases, flood, fire, earthquake, war, restrictions by any relevant authority, acts of God, strikes, lockouts, casualties, labour difficulties, inability to procure materials, failure of power, applicable laws, riots, insurrection, accidents against which reasonable prudence could not have provided, or any act or omission on the part of a third party. 15) INTELLECTUAL PROPERTY 15.1) The contents of the Agreement shall not be construed as permitting the Applicant to use any of the intellectual property or branding of any one of the V&A in a manner other than those and under the conditions envisaged in this Agreement. No provision in this Agreement shall be construed as any member of the V&A waiving any of its intellectual property rights. The Applicant shall not have the right or permission to continue using the V&A’s intellectual property or branding after the termination of the Agreement. 15.2) The V&A confirms that it shall have no claim, right and/or interest in or to the Production. All rights to the Production shall rest wholly in the Applicant. 16) SPECIAL NATURE OF V&A WATERFRONT The Applicant acknowledges that – 16.1) the location is situated upon the V&A Waterfront which includes a working harbour, cruise liner terminal, canal network, dry dock, synchrolift, bridges and lock, all of which activities and operations necessarily involve, inter alia, certain noise, smell and traffic nuisance; 16.2) the V&A Waterfront is a popular tourist destination which attracts a significant number of local and international visitors and tourists and from time to time hosts public events, which necessarily involves, inter alia, certain levels of noise and pedestrian and vehicular traffic and may impede access at the V&A Waterfront including the immediate surrounds of the Premises; and 16.3) the V&A Waterfront is situated in close proximity to the Cape Town Stadium which hosts large public events from time to time which necessarily involves, inter alia, certain levels of noise and pedestrian and vehicular traffic and may impede access at the V&A Waterfront including the immediate surrounds of the Premises. 17) DEVELOPMENT AT THE V&A WATERFRONT 17.1) The Applicant acknowledges that ongoing development works are being undertaken at the V&A Waterfront and the Location may be situated in close proximity to some of these developments. 17.2) The Applicant agrees to hire the Location notwithstanding such works. 17.3) It is recorded that the Applicant shall not have any claim against the V&A for damages due to any nuisance or inconvenience occasioned to the Production or damages suffered by the Applicant on account of any construction or development activity undertaken at the V&A Waterfront, including but not limited to, any noise, dust, smell or any other nuisance of whatever kind accompanying such activity, unless such damages are due to the negligence or willful misconduct of the V&A its employees, agents or contractors. 18) PROTECTION OF PERSONAL INFORMATION 18.1) It is recorded that during the course of this Agreement, the Parties will be processing Personal Information for each other as specified in this Agreement. The Parties agree that in processing such Personal Information, to comply with the provisions of the Protection of Personal Information Act 4 of 2013. 18.2) The Parties may with the knowledge and consent of the other Party process and use such Personal Information for the purpose of fulfilling its obligations under this Agreement. 18.3) The Parties must treat the Personal Information that comes to its knowledge as confidential and must not disclose it unless required by law or in the course of the proper performance of its obligations and then only with the prior written consent of the other Party. 18.4) The Parties shall limit access to the Personal Information only to those employees who need to know in order to enable it to perform its obligations under this Agreement. 18.5) Upon termination of this Agreement or upon request a Party shall return to the other Party any record containing, pertaining or relating to the Personal Information disclosed pursuant to this Agreement. Alternatively, a Party shall, at the instance of the other Party, destroy such material and shall satisfy that Party that it has done so. 18.6) The Parties agree that it shall be accountable at all times to the other Party in processing Personal Information. 18.7) The Parties indemnifies each other and holds each other harmless against any loss, liability, damage or expense of any nature suffered or incurred by a Party (and all costs incurred by it in connection therewith, including legal costs on an attorney and own client scale) which may accrue against or be charged to or be recovered from or sought to be recovered from that Party arising from the other Party’s breach of its obligations to such Party in terms of this Agreement and/or the other Party’s negligent or intentional conduct in relation to the it’s processing of the Personal Information. 19) GENERAL 19.1) This Agreement constitutes the sole record of the Agreement between the Parties in regard to the subject matter thereof. 19.2) No Party shall be bound by any representations, express or implied term, warranty, promise or the like not recorded herein or reduced to writing and signed by the Parties or their representatives. 19.3) No addition to, variation, or agreed cancellation of this Agreement shall be of any force or effect unless recorded in a consolidated written document which is signed by or on behalf of the Parties by their duly authorized representatives. Such document may be signed in counter-parts and such signature must be executed by hand with a pen or by an encrypted digital signature. 19.4) No indulgence that any Party may grant to any other shall constitute a waiver of the rights of the grantor. 19.5) All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement that is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegally, unlawfulness or for any other reason whatever, shall in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof. 19.6) The Applicant shall not be entitled to cede any of their rights or to delegate any of their obligations under the Agreement without the prior written consent of the V&A. 19.7) This Agreement shall be governed by, and interpreted under the laws of the Republic of South Africa. 19.8) The Parties agree that in the event that the V&A determines, in its sole and absolute discretion, that there is a serious threat to the V&A Waterfront and/or the Applicant or any other persons, the V&A shall be entitled to immediately stop all filming for as long as the threat persists. It is agreed that the Applicant shall not be entitled to any compensation or damages of whatsoever nature in such event, provided that the V&A was not negligent in stopping the filming.
